COVID-19: California State Issues A "Right To Recall" For Employees In Hospitality And Other Industries
Posted April 22, 2021

With the stay-at-home orders beginning to lift across the state, and in anticipation of the state’s full reopening in June 2021, on Friday, April 16, 2021, Governor Newsom signed SB 93 into law, creating Labor Code section 2810.8.

SB 93 requires covered employers in specific industries to provide former employees who were “laid off due to a reason related to COVID-19,” with information about their “right to recall.” It also requires covered employers to rehire laid-off employees based on a seniority preference system. For covered employers, this bill essentially eliminates the flexibility to decide which employees to bring back, and the order in which to return laid-off employees to work.

Notably, SB 93 follows on the heels of several local cities instituting their own “right to recall” ordinances, including San Francisco, Los Angeles, and Sacramento, among others. For any cities that have already implemented (or those that choose to implement) “right to recall” ordinances in the future, SB 93 explicitly states that it does not preempt local law; rather, local “right to recall” ordinances are permissible so long as they offer greater or different rights to impacted employees than those created by SB 93.

Below is a series of questions and answers related to SB 93:

Where can I find the SB 93 bill language?

The complete text of SB 93 can be accessed here.

When is SB 93 effective and what time period does it cover?

SB 93 was immediately effective upon its signing on April 16, 2021, and remains in effect until December 31, 2024.

To which businesses does SB 93 apply?

SB 93 does NOT apply to every California employer. SB 93 applies generally to the hospitality, travel and business services sectors. Specifically, SB 93 applies to:

  • Airports (including airport hospitality operations and airport service providers);
  • Building services (janitorial, building maintenance, or security services);
  • Certain hospitality enterprises of a certain size (hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building services to office, retail, or other commercial buildings); and
  • Event centers (50,000 square feet or 1,000 seats that are used for the purposes of public performances, sporting events, business meetings).

Employers in these industries (or on the fringes) are advised to consult with their employment counsel to review the detailed language of SB 93 about potential exclusions or requirements for coverage. For example, a private club – although generally listed above – is required to comply with SB 93 only if it, “operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members.”

Which employee are covered?

SB 93 does NOT apply to all laid-off employees. SB 95 applies only to, “Laid-off employee[s] … whose most recent separation from active service was due to a reason related to the COVID-19 pandemic….”

The term, laid off “due to a reason related to the COVID-19 pandemic,” is defined broadly and deemed to include any form of separation from employment related to “a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason due to the COVID-19 pandemic.”

To be eligible under SB 93, the laid-off employee also must have been “employed by the employer for 6 months or more in the 12 months preceding January 1, 2020.”

If I am a covered business, and my laid-off employees are covered, what do I do?

Once a covered business starts to reopen, within five business days of re-opening the positions, the business must offer the “laid-off employees” all job positions for which the laid-off employees are qualified. The positions must be those that were eliminated due to “a reason related to the COVID-19 pandemic.”

Note that for the purposes of SB 93, a business day is defined to mean any calendar day except Saturday, Sunday, or any official state holiday.

What does the phrase “positions for which the laid-off employees are qualified” mean?

According to SB 95, “A laid-off employee is qualified for a position if the employee held the same or similar position at the enterprise at the time of the employee’s most recent layoff with the employer.”

How is notice of position re-openings given?

SB 93 states that notice of reopening must be given to the employees “…in writing, either by hand or to their last known physical address, and by email and text message to the extent the employer possesses such information.”

What if I have more qualified employees than I have available positions?

SB 93 provides, “If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service based on the employee’s date of hire for the enterprise.”

What If I prefer a less-senior employee? Do I still have to recall the more senior employee?

Generally, yes. You must follow the seniority-based right to recall rules established by SB 93. If you choose not to do so, and you hire someone other than the most-senior laid off employee, then you are required to, “… provide the laid-off employee a written notice within 30 days including the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.”

I’ve given notice to my qualified laid-off employees. Now what?

After notice is given, the qualified laid-off employees then have five business days (from the date they receive the notice) to accept or decline the offer. Presumably, if the most senior employee does not respond, or declines the position, the covered employer can move to the next most senior employee.

In an effort to minimize delays, the law also provides that an employer can, “… make simultaneous, conditional offers of employment to laid-off employees, with a final offer of employment conditioned on application of the preference system….”

Are there penalties for non-compliance?

Yes. Although SB 93 does NOT create a private civil right of action for former employees, it does allow those employees to file a claim with the State Labor Commissioner (the Division of Labor Standards Enforcement (“DLSE”)) for remedies like back pay, front pay and recovery of the value of lost benefits.

SB 93 also creates civil penalties as follows: “…one hundred dollars ($100) for each employee whose rights under these provisions are violated and an additional sum payable as liquidated damages in the amount of five hundred dollars ($500), per employee, for each day the rights of an employee under this section are violated and continuing until such time as the violation is cured, which shall be recovered by the Labor Commissioner, deposited into the Labor and Workforce Development Fund, and paid to the employee as compensatory damages.”

What else do I need to know?

Employers are required to keep SB 93-related records for three years, measured from the date of the written notice regarding the layoff. For each laid-off employee, the covered employer must retain the following:

  • “[T]he employee’s full legal name;
  • the employee’s job classification at the time of separation from employment;
  • the employee’s date of hire;
  • the employee’s last known address of residence;
  • the employee’s last known email address;
  • the employee’s last known telephone number; and
  • a copy of the written notices regarding the layoff provided to the employee and all records of communications between the employer and the employee concerning offers of employment made to the employee.”

SB 93 also contains strict anti-retaliation language. It states, “No employer shall 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, for participating in proceedings related to this section, opposing any practice proscribed by this section, or otherwise asserting rights under this section. This subdivision shall also apply to any employee or laid-off employee who mistakenly, but in good faith, alleges noncompliance with this section.”

Finally, SB 93 allows the Labor Commission to promulgate guidance and rules on this topic and SB 93 implementation. As with other COVID-19 rules, we can anticipate “Frequently Asked Questions” or additional guidance from the DLSE.

For further information regarding COVID-19 questions, or other employment law issues, contact the attorneys at LightGabler.

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