California Labor Commissioner Issues Guidance For Statewide Right Of Recall

Jackson Lewis P.C.

Several months after Governor Newsom signed into law a statewide right of recall statute affecting the hospitality industry and building services, the Labor Commissioner’s office finally issued a Frequently Asked Questions page.

The FAQs clarify that an acceptance by an employee of an offer must be delivered to the employer within 5 business days, which does not include Saturdays, Sundays, or California state holidays.

Moreover, the obligation to offer positions does not end if an employee declines a position. If an employee turns down a job offer, an employer must offer the employee subsequent jobs that are to be filled assuming the employee worked at the same or similar position. As stated in the statute, an employer does not have to recall a non-qualified employee. A qualified employee is defined as an employee who held the same or similar position with the employer at the time of the employee’s most recent lay-off.

An employer must provide the laid-off employee a written notice within 30 days of the date of filling the position if the position is filled by a less senior employee. The notice must include the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.

An employer must keep the following records for at least three years from the date of a lay-off notice:

  • the laid-off employee’s full name, job classification, date of hire, last known address of residence, email address, telephone number;
  • a copy of the lay-off notice; and
  • copies of all communication between employer and employee concerning employment offers.

The Labor Commissioner also notes that the statewide right of recall is the minimum bar for employee rights, but cities are permitted to make more stringent requirements. And several California cities continue with their own COVID-19 related right of recall ordinances.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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