As California and the U.S. enjoy a surge in the travel industry again, the newly codified Labor Code section 2810.8 sets forth the obligations of California employers with regard to the recall of laid-off employees in many hospitality positions. The new law took effect on April 16, 2021 and expires on December 31, 2024.
The Department of Labor recently published a list of FAQs concerning recall rights. With these clarifications, employers should be prepared to immediately identify qualifying laid-off employees (with contact information, prior positions, years of employment) and issue the necessary notices as soon as positions become available. Employers should also ensure the statute’s requirements are incorporated into written policies and prepare form notices to be sent to laid-off employees as positions become available.
One of the key provisions in the FAQs involves the continuous right to recall. This mandate provides that in the event someone is recalled and turns down a job, the employer must continue to offer subsequent job opportunities. In other words, as each new position(s) becomes available, the employer must notify and offer the job(s) to all qualified laid-off employees who worked at the same or a similar position, including laid-off employees who have previously declined an offer to be re-hired for a prior position. Simultaneous, conditional offers may be made to more than one laid-off employee, with the final decision concerning which employee will be hired for the position determined by seniority.
This provision underscores the importance of maintaining an up-to-date information and current form notices.
Important details related to the continuous right to recall include:
- 5 days to offer. Within five business days of establishing a position, an employer shall offer laid-off employees in writing (either by hand or to their last known address) and by email and text message (when known) all job positions that become available for which the laid-off employees are qualified. Employees should be offered the positions in order of preference. If more than one employee is entitled to preference, employers can prioritize by length of service based on total length of service.
- 5 days to accept/decline offer. A laid-off employee who is offered a recall position shall be given at least five business days from receipt of the offer to accept or decline. Saturdays, Sundays, and CA state holidays are not counted. An employer may make simultaneous, conditional offers to laid-off employees with a final offer conditioned on application of the preference system set forth above. If an employee turns down a job, the employer must offer the employee subsequent new positions as they become available.
- Record retention. Employers must retain records for three years from the date of written notice for each laid-off employee, including employee’s full legal name, job classification, date of hire, last known residence address, email address, telephone number, a copy of written layoff notices, and all communications concerning employment offers made to the employee pursuant to this statute.
- Notice of Hire. An employer that declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone else shall provide the laid-off employee written notice within 30 days, including the length of service with the employer of those hired in lieu of that recall and all reasons for the decision.
- Other applications. The right to recall also applies when employer ownership changes after layoff if the enterprise is conducting the same/similar operations, when the form of organization changes, when employer assets are acquired by another entity conducting the same/similar operations using the same assets, or when the employer relocates operations at which a laid-off employee was employed.
- Enforcement. No employer may refuse to employ, terminate, reduce in compensation, or otherwise take any adverse action against any laid-off employee for seeking to enforce their rights under this section, including any employee who mistakenly alleges noncompliance with this section. The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction to enforce this section. A laid-off employee may file a complaint with the DLSE for violations and may be awarded: (A) Hiring and reinstatement rights; (B) Front pay or back pay for each day during which the violation continues; (C) Value of the benefits the laid-off employee would have received under the employer’s benefit plan. Note that cities and counties may enact greater protections through local ordinances.
- Civil Penalty. Any employer who violates this statute shall be subject to a civil penalty of one hundred dollars ($100) for each employee whose rights are violated, plus liquidated damages of $500 per employee for each day the rights of an employee are violated until the violation is cured, recovered by the Labor Commissioner. The Labor Commissioner shall enforce this section, including investigating an alleged violation and ordering appropriate temporary relief. In such action, the court may issue preliminary and permanent injunctive relief and interest on amounts due; remedies and penalties are cumulative. All of these provisions may be waived in a valid collective bargaining agreement if explicitly set forth in that agreement.