A recently enacted California law, SB 93, effective April 16, 2021, requires some employers in the hospitality industry to prioritize, through Dec. 31, 2024, recalling workers who were laid off due to the COVID-19 pandemic.
The new law applies to certain hotels and membership-based accommodations, event centers, airport restaurants and shops, and other airport hospitality operations and service providers. It also applies to enterprises that provide building services—such as janitorial, maintenance or security—to office, retail or other commercial buildings.
Under SB 93 covered employers, when reopening, must give each former employee five days to respond to a written job offer sent by mail to the employee’s last known address, as well as by e-mail and text, if the employer has that information.
If more than one former employee qualifies for a particular position, the company must send out conditional offers and rehire the employee with the greatest seniority based on chronological, not cumulative, service. Thus, part-time workers hired earlier than full-time employees have priority.
The law creates a presumption that anyone who was terminated during the pandemic was let go because of the pandemic. Enforcement of the law is by the California Division of Labor Standards Enforcement. The California Labor Commissioner’s office on a FAQ page, advises, as new positions become available, the employer must notify and offer opportunities to “all qualified laid-off employees who worked at the same or a similar position, including laid-off employees who have previously declined an offer to be re-hired for a prior position.” Noncompliance can result in damages for violations reaching $500 per employee per day.
Employers who are recalling workers should consult with their employment legal counsel to determine if they are covered by the law. If covered, employers should update their procedures for keeping track of employees and former employees as they will need to keep the following records for three years from the date of layoff for each employee:
- Full legal name.
- Job classification.
- Date of hire.
- Last known address.
- Last known e-mail address.
- Last known phone number.
- A copy of the written notice of the layoff.
- All communications on offers of employment.
Covered employers should create recall templates and very specific processes to help achieve compliance.
Additionally, certain requirements, such as basing recall on a hire date rather than other considerations, could conflict or be inconsistent with existing company policies or practices, which is another reason to ensure covered employers consult with their legal counsel before recalling laid-off California workers.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
