On April 16, 2021, Governor Newsom signed into law Senate Bill 93, which granted the right to recall for certain California hospitality and business services workers whose employment has been impacted by COVID-19 through December 31, 2024. The new law is comprehensive and has specific mandates. Employers covered by this law should immediately become familiar with it. It takes effect immediately as Labor Code section 2810.8 and provides for the following:
Employers: The new law applies to all employers (persons, temporary agencies, staffing agencies, corporations, partnerships, or other entities, as defined) that own or operate any of the following types of businesses:
- Hotel (with 50 or more rooms/suites at the time of opening or as of 12/31/19, whichever is greater, including certain related premises and services)
- Private Club (that operates a building or complex that has 50 or more guest rooms/suites for overnight lodging of members, at the time of opening or as of 12/31/19, whichever is greater)
- Event Center (structure of more than 50,000 square feet or 1,000 seats, including certain related premises, services, and parking structures)
- Airport Hospitality Operation (food, beverage, or retail at the airport)
- Airport Service Provider (contracting with certain airport-related entities for various functions at the airport property, excluding FAA-certified air carriers)
- Building Services (janitorial, building maintenance, or security services) to office, retail or other commercial buildings
Employees Subject To The Law: The law applies to any employee who was employed for 6 months or more in the 12 months before January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic. The separation can be due to a public health directive, government shutdown order, lack of business, reduction in force, or other economic reason due to the COVID-19 pandemic. Separations for disciplinary reasons do not qualify. The 6-month length of service includes time when the employee was on leave or vacation.
Broad and Detailed Right To Recall Requirements: To comply with the law, within 5 business days of establishing an open position, the employer must offer, in writing, its laid-off employees (by hand or to last known address and by e-mail and text if known) all job positions that become available for which the employee is qualified. An employee is qualified if they held the same or similar position at the time of the most recent layoff. Employees must be given at least 5 business days from the date of receipt of the offer to accept or decline the job.
Seniority Provision: If more than one employee is entitled to preference for the position, then the employee with the greatest length of service must be given the job, even if the less senior employee was a stronger performer. The job offer(s) can be made to multiple employees, contingent upon more senior employees not accepting the offer(s). If the employer declines to recall a laid-off employee based on lack of qualification and hires a non-laid-off employee, the employer must provide a written notice within 30 days stating all of the reasons for the decision and the length of service with the employer of those hired in lieu of recall.
Recordkeeping Requirement: Covered employers must keep records for 3 years from the date of written notice of the layoff, of the laid-off employees’:
- Full legal name
- Job classification at separation
- Date of hire
- Last known address, e-mail address, and telephone number
- Written notices regarding layoff provided to the employee
- All communications with the employee concerning offers of employment made
Damages And Penalties: A laid off employee can file a complaint with the Division of Labor Standards Enforcement (DLSE) for violations. The DLSE has exclusive jurisdiction to enforce this law; and violating employers are subject to the following damages and penalties:
- Front pay and back pay for each day the violation continues
- Value of the benefits the laid off employee would have received
- A civil penalty of $100 for each employee whose rights were violated and liquidated damages of $500 per employee for each day the rights of an employee were violated until the violation is cured
Other: Local government agencies can impose greater standards than this law. Employees can also pursue a common law cause of action for wrongful termination. These provisions can be waived in a valid collective bargaining agreement if it is clear and unambiguous and not unilaterally implemented.
Conclusion: If you are a California employer covered by SB93, you should ensure you immediately follow the recordkeeping requirements of this new law and carefully follow the requirements when hiring/rehiring employees until the expiration of this law.