In California, the legislature enacted and Governor Newsom signed a law regarding the rehiring practices of certain employers to rehire employees who were laid off because of the pandemic. Senate Bill No. 93 (SB 93) requires certain employers to provide written notice and rehire employees who had been laid off due to the COVID-19 pandemic. SB 93 creates Labor Code § 2810.8 and takes effect immediately but is set to expire December 31, 2024.

Covered Employers:

Not all California employers are required to follow these rehiring practices. SB 93 applies to certain employers including:

Hotels with 50 or more guests.
Private clubs that operate building(s) containing at least 50 guest rooms that offer overnight lodging for members.
Publically or privately owned event centers “of more than 50,000 square feet or 1,000 seats that [are] used for … public performances, sporting events, business meetings, or similar events.”
Airport hospitality operations that provide services “in connection with the preparation of food or beverage[s] for aircraft crew or passengers at an airport.”
Airport service providers that provide services “directly related to the air transportation of persons, property, or mail.” Air carriers certified by FAA are not included in this definition.
Employers that provide “janitorial, building maintenance, or security services” to office, retail, or other commercial buildings.

Covered Employees:

To be protected under this new law, a covered employee must have:

Worked two or more hours per week for a covered employer;
Been employed by a covered employer for “6 months or more in the 12 months preceding January 1, 2020;” and
Been separated from active service because of reasons relating to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, reduction in force, or other economic non-disciplinary reasons related to the pandemic.

Obligations of the Employer:

An employer who establishes an open position must first offer the position, in writing, to laid-off employees within five business days of establishing the position. The offer must be delivered in writing either in person or to the last known physical address, and by email or text message if the employer possesses that information. The employee must be qualified for the position offered. A qualified employee is an individual who held the same or similar position at the company prior to being laid-off.

Employers are permitted to make simultaneous conditional offers of employment to laid-off employees. Employees have five business days from the date of receipt in which to either accept or decline the offer. However, if more than one employee accepts the position, the employer must rehire the employee who has the greatest length of service beginning from the employee’s date of hire.

An employer who declines to recall a laid-off employee based on a lack of qualifications must provide a written notice within 30 days to the laid-off employee. The notice must include:

List of all employees hired for the position,
Length of their service with the employer; and
Employer’s explanation as to why the employee was not rehired.

Union Employees:

All of the provisions found within SB 93 can be waived in a collective bargaining agreement (CBA). To waive the requirements of this new law, the CBA must do so explicitly in clear and unambiguous language.

Recordkeeping:

Records relating to this code section must be kept for three years “measured from the date of the written notice regarding the layoff for each laid-off employee.” Records include any layoff notices and all communication records between the employer and employee regarding employment offers with respect to SB 93’s requirements.

The records need to include each laid-off employee’s full legal name, the employee’s job classification at the time of layoff, date of hire, last known address of residence, last known email address, and last known telephone number.

Damages and Penalties:

The Division of Labor Standards Enforcement (DLSE) is tasked with enforcing this new law. Employees may file a complaint with the DLSE. An employee may be awarded any or all of the following:

Hiring and reinstatement rights.
Front or back pay.
Value of benefits that would have been received under the employer’s benefit plan.
Interest on all amounts due and unpaid.

While no criminal penalties are permitted under Lab. Code § 2810.8, certain civil penalties may be imposed on the employer. The DLSE may impose civil penalties of $100 per each individual whose rights are violated. In addition, the DLSE is provided with the discretion to impose liquidated damages of $500 per day for each individual whose rights the employer violated until the violation was cured. The state will pay the penalties and liquidated damages to the employee as compensatory damages.

Retaliation:

Lastly, employers are prohibited from retaliating or taking any adverse employment action against employees who attempt to enforce their rights under this law.

California employers who are covered by SB 93 should take note of the new requirements and ensure their recall and rehire policies comply with the new requirements. These requirements will remain in effect until December 31, 2024.