Recall Right for Certain Hospitality and Construction Services Workers Affected by COVID in California, Signed Into Law | CDF Labor Law LLP

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On April 16, 2021, Governor Newsom enacted a law Senate Bill 93, which granted recall rights to certain California hotel and commercial services workers whose jobs have been affected by COVID-19 until December 31, 2024. The new law is comprehensive and has specific mandates. Employers covered by this law should familiarize themselves with it immediately. It takes effect at once as article 2810.8 of the Labor Code and provides the following:

Employers: The new law applies to all employers (persons, temporary agencies, employment agencies, corporations, partnerships or other entities, as defined) who own or operate any of the following types of businesses:

  • Hotel (with 50 or more rooms / suites at time of opening or as of 12/31/19, whichever is greater, including certain premises and related services)
  • Private Club (which operates a building or resort that has 50 or more rooms / suites for member accommodation, at time of opening or as of 12/31/19, whichever is greater)
  • Event Center (structure over 50,000 square feet or 1,000 spaces, including certain spaces, services and related parking structures)
  • Airport reception operation (food, drinks or retail at the airport)
  • Airport service provider (outsourcing with certain airport related entities for various functions on airport property, excluding FAA certified air carriers)
  • Building services (janitorial, building maintenance or security services) to offices, 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 prior to January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic. The separation may be due to a public health directive, a government shutdown order, lack of activity, reduced force, or some other economic reason due to the COVID-19 pandemic. Separations for disciplinary reasons are not admissible. The 6-month period of service includes the time the employee was on leave or on vacation.

General and detailed requirements for the right of recall: To comply with the law, within 5 working days of the establishment of a vacant position, the employer must offer, in writing, its laid-off employees (by hand or at the last known address and by email and text if known) all positions that become available for which the employee is qualified. An employee is qualified if he or she held the same or a similar position at the time of the last layoff. Employees must have at least 5 working days from the date the offer is received to accept or decline the position.

Seniority provision: If more than one employee is entitled to the preference for the position, then the employee with the longest tenure should be assigned the position, even if the younger employee was a better interpreter. Job offers can be made to multiple employees, provided that older employees do not accept the offers. If the employer refuses to recall an employee laid off due to lack of qualification and hires an employee who has not been laid off, the employer must provide a written notice within 30 days stating all the reasons for the decision and the length of service with the employer of the people hired instead of the recall.

Record keeping requirement: Covered employers must keep records for 3 years from the date of the written notice of layoff, of laid off employees:

  • Full legal name
  • Classification of jobs at the time of separation
  • Hiring date
  • Last known address, email address and phone number
  • Written layoff notices provided to employee
  • All communications with the employee regarding job offers made

Damages and penalties: A laid-off employee can file a complaint with the Labor Standards Enforcement Division (DLSE) for violations. The DLSE has exclusive jurisdiction to apply this law; and non-compliant employers are exposed to the following damages and penalties:

  • Reinstatement / hiring
  • Front and back payment for each day the violation continues
  • Value of benefits the laid-off employee would have received
  • A civil fine of $ 100 for each employee whose rights have been violated and damages of $ 500 per employee for each day an employee’s rights have been violated until the violation is corrected
  • Interest

Other: Local government agencies may impose more stringent standards than this law. Employees can also sue under the common law for wrongful dismissal. These provisions can be overridden in a valid collective agreement if it is clear and unambiguous and not implemented unilaterally.

Conclusion: If you are a California employer covered by SB93, you should ensure that you immediately follow the record-keeping requirements of this new law and carefully follow the requirements when hiring / re-hiring employees until the expiration of this law.

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