Hospitality Industry Must Rehire Employees Laid Off Due To COVID-19

Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLPOn, April 16, 2021, Governor Gavin Newsom signed Senate Bill 93. Generally speaking, this new law, which is effectively immediately (and is in effect through 2024) requires hospitality-related employers to rehire certain employees who lost their jobs for pandemic-related reasons. Here are the key issues:

What employers are covered by SB 93? Hotels, private clubs, event centers, airport hospitality operations, airport service providers, or entities providing services (janitorial, building maintenance or security) to commercial buildings.

What employees are potentially eligible for recall under SB 93? Employees who were employed by the employer for at least six months during the 2019 calendar year and who were terminated involuntarily (laid off) for a pandemic-related reason, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.

What requirements are imposed on employers under SB 93? The affected employer must offer laid-off employees information about job positions that are available or become available for which the former employees are qualified. The affected employer must then offer positions to such former, laid off employees based on a preference system. Importantly, under the preference system, if more than one employee is entitled to a position based on the foregoing criteria, the employer has to first offer the position to the more senior employee (measured by hiring date).

When and How Must An Employer Provide Notice? Within 5 days of establishing of the opening or creation of an open position, written notice of such position must be provided to the eligible former employee. The notice must be delivered by hand or to the employee’s last known address. The notice must also be provided by text and email if the employer has the former employee’s cell phone number and/or email address.

When and How Must a Former Employee Respond in Order to Accept the Position? The former employee must be given at least five business days from the date he/she receives it to accept the position. If the employee accepts the position, then the employer must recall the employee back to work.

Are There Any Exceptions to this Mandate to Recall Laid Off Employees? Yes, but they are limited. If an employer chooses not to recall an employee for a position based on the grounds that he/she is unqualified, the employer must provide written notice explaining the reasons for the decision within 30 days.

Are There Anti-Retaliation Provisions in SB 93? Yes. Employers are prohibited from taking any adverse employment action against employees who exercise, or try to exercise, their rights under SB 93. Further, employers must maintain records regarding such layoff/recall efforts for three years, including records of communications regarding the layoffs and offers.

We at Hirschfeld Kraemer strongly suggest that affected employers review their policies and procedures immediately to ensure that they conform with this new law.

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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