Employment Law Bulletin | April 23, 2021

New California Law Imposes Employee Recall Rights on Some Employers

Senate Bill 93 (SB 93) requires some employers to offer jobs to laid-off employees if jobs for which they are qualified become available after April 16, 2021.  The law will remain in effect until December 31, 2024.  The text of SB 93 can be found here:  https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB93.

SB 93 applies to the following Covered Employers (“Employers”) regardless of their head count:

• Hotels (residential buildings designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms);
• Private Clubs (private, membership-based businesses or nonprofit organizations that operate a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members);
• Event Centers (publicly or privately owned structures of more than 50,000 square feet or 1,000 seats that are used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers, as well as contracted, leased or sublet premises connected to or operated in conjunction with the event center’s purpose, such as retail stores, restaurants, bars and parking facilities);
• Airport Hospitality Operations and Airport Service Providers (see SB 93 for definitions); and
• Providers of Building Services to Offices, Retail, or other Commercial Buildings (janitorial, building maintenance and security services).

SB 93 requires Employers to follow a series of steps:

Step 1  Identify “Laid-Off Employees”:  defined as (1) those employed for 6 months or more between January 1, 2019 and January 1, 2020; and (2) most recently separated from active service for a reason related to the COVID-19 pandemic (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).  “Laid-Off Employees” also include employees hired from temporary service providers.

Step 2  Recall Notice and Offer of Employment to Laid-Off Employees:  Within 5 business days of a job position becoming available after April 16, 2021, Employers must issue a written notice to Laid-Off Employees who are qualified for the position.  A Laid-Off Employee is considered qualified for a position if the employee held the same or similar position at the time of the employee’s most recent layoff.

• Contents of Notice:  The notice must contain (1) information about all job positions that become available for which the Laid-Off Employees are qualified; and (2) an offer of employment.  If there are more qualified Laid-Off Employees than open positions, Employers must use a preference system and offer the position to the Laid-Off Employee with the greatest length of service based on the employee’s date of hire.  Employers may also make simultaneous, written offers of employment to Laid-Off Employees, with a final offer of employment expressly conditioned on application of the preference system.
• Delivery of Notice:  Written notice must be delivered by hand or to the Laid-Off Employees’ last known physical address AND by email and text message (if the employer has such information).

Step 3  Notice to Laid-Off Employees Not Recalled Due to Lack of Qualifications:  If the Employer declines to recall a Laid-Off Employee on the grounds of lack of qualifications, the Employer must provide the Laid-Off Employee with a written notice within 30 days, stating the length of service of the individual hired and the reasons for the Employer’s decision not to hire the Laid-Off Employee.

Step 4  Waiting for the Response to the Job Offer:  Employers must give a Laid-Off Employee who is offered a position at least 5 business days from the date of receipt of the job offer to accept or decline.

Step 5  Record Retention Requirements:  Employers must retain records with the following information for each Laid-Off Employee for at least 3 years from the date of the written notice of layoff:

• full legal name
• job classification at the time of separation from employment
• date of hire
• last known residence address
• last known email address
• last known telephone number
• a copy of all written notices regarding the layoff provided to the employee
• all records of communications between the employer and the employee concerning offers of employment made to the employee pursuant to SB 93

SB 93 is enforced by the Labor Commissioner.  Employers who violate SB 93 can be required to rehire the Laid-Off Employee and pay front pay, back pay, lost employment benefits, civil penalties and other damages.

Note that SB 93’s definition of “Employer” includes not only the business organization itself, but also corporate directors, executives and individuals who directly or indirectly own/operate the business or who exercise control over the wages, hours, or working conditions of any employee.  “Employer” also includes successor employers.

If SB 93 applies to your business, we recommend that you compile the information listed above in Step 5 for employees laid off due to the pandemic and develop a recall plan.  SMT’s employment attorneys are available to answer your questions and to assist you in developing your recall plan and employee notice.

Lisa Ann Hilario

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SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown