California Provides Right to Recall to Certain Employees Laid off Due to COVID-19

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[co-author: Michael Byrne]*

Q: Are California employers required to rehire employees they laid off for reasons related to the COVID-19 pandemic?

A: Yes, but only if the employer falls within certain industries and establishes an open job position for which one of its laid-off employees is qualified. Under California’s Senate Bill No. 93 (SB 93), if a covered employer opens a job position and has previously laid off workers due to reasons related to the COVID-19 pandemic, the employer must first offer the position to eligible laid-off employees within five days of establishing the position.

Enacted on April 16, 2021, SB 93 covers employers that own or operate a hotel, private club, event center, airport hospitality operation, or airport service provider or that provide janitorial, building maintenance, or security services to a commercial building.

Laid-off employees have a right to recall under SB 93 if they:

  1. were employed by the covered employer for at least six months in the 12 months prior to January 1, 2020;
  2. regularly worked at least two hours per week for the employer prior to being laid off;
  3. were terminated for a reason related to the COVID-19 pandemic, such as government restrictions, public health directives, workforce reductions, business regressions, or other non-disciplinary reasons; and
  4. are qualified for the employer’s open position — meaning the employee held the same or similar position with the employer at the time of the relevant layoff.

If multiple laid-off employees meet these criteria for an open position, the employer must offer the position to the employee that had the longest tenure with the employer. Notably, if a covered employer declines to recall a laid-off employee based on a lack of qualification for an open position, the employer must provide the employee with written notice, which must include the employer’s reasoning for the decision.

Recordkeeping Requirements

Covered employers must retain records related to all laid-off employees for a minimum of three years following the date an employer provided written notice of the relevant layoff.

Enforcement

The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction to enforce SB 93. Although individuals have no private right of action under the statute, laid-off employees may file a complaint with the DLSE for potential violations of SB 93. Criminal penalties do not apply.

Conclusion

SB 93 will remain in effect until December 31, 2024. Thus, employers in California should determine whether they are covered by SB 93, and if so, they should carefully consider SB 93 when making any hiring decisions over the next few years. Additionally, SB 93 allows local governments to grant additional protections to laid-off employees, and numerous cities and counties across California have already done so. Accordingly, covered employers should continue to stay up to date on any applicable local ordinances.

*summer associate

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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