Employers in the hotel, event center, airport and private club sectors and those providing services to commercial buildings must now give employees who were laid off due to the COVID-19 pandemic preferential recall rights over other applicants pursuant to newly enacted Senate Bill 93. Hotel operations consisting of 50 or more guest rooms or suites must comply with the new law.

Laid-off event center employees who worked in publicly or privately owned structures of more than 50,000 square feet or 1,000 seats used for “public performances, sporting events, business meetings, or similar events” are also entitled to preferential recall.

Airport hospitality operations employees of businesses that provide “food and beverage, retail, or other consumer goods or services to the public at an airport” are entitled to the preference. In addition, any “business that prepares, delivers, inspects, or provides any other service in connection with the preparation of food or beverage for aircraft crew or passengers at an airport” must also give laid-off employees a preference in re-hiring. Airport service providers that load or unload passengers, property or mail on and off planes or provide services such as airport security, ticketing, and ground handling of aircraft are also entitled to preferential recall rights.

Private membership-based businesses and nonprofits that operate a building or group of buildings that contain 50 or more guest rooms or suites of rooms offered as overnight lodging to members must provide laid-off employees with preference to return to work. Also, businesses providing janitorial, building maintenance or security services to office, retail or other commercial buildings must also first re-hire laid-off employees.

These new obligations also apply to officers and executives who exercise control over wages, hours of work or working conditions.

To be eligible to preferential recall, laid-off employees must have been employed by a covered employer for six months or more in 2019 and were most recently separated from active service “due to a reason related to the COVID-19 pandemic,” such as a government shutdown order, a lack of business or a reduction in force.

Under the law whenever a position becomes available for a covered employer, the employer must, within five business days, offer the position to all laid-off employees who are qualified for the position. If a laid-off employee “held the same or similar position” with the employer at the time of their most recent layoff, the employee is considered qualified for the position. The offers must be delivered in
hardcopy and by email or text, to the extent the employer has email addresses or cell phone numbers. Where more than one laid-off employee is qualified for a position, the employer must give preference to the employee with the greatest length of service. Laid-off employees have at least five business days from their receipt of an offer to accept or decline it.

Where an employer declines to recall a laid-off employee “on the grounds of lack of qualifications” and instead hires someone other than a laid-off employee, the employer must in writing within 30 days
provide to covered laid-off employees, information on “the length of service of those hired in lieu [of the laid-off employee not hired], along with all reasons for [the employer’s] decision.”

Laid-off employees may file complaints for violations of the new recall requirements with the California Division of Labor Standards Enforcement (DLSE). The DLSE is authorized to award reinstatement, lost earnings and the value of benefits the laid-off worker did not receive because they were not recalled.

The Labor Commissioner may seek civil penalties accruing on a daily basis for each day an employee’s rights under the new law are violated, issue citations and file civil suits against employers who violate the new recall system and seek equitable and injunctive relief.

The DLSE is given “exclusive jurisdiction to enforce” the law. Thus, covered employees whose recall rights may have been violated may not file suit in court against employers to vindicate those rights.

Employers covered by the new California law should expand their hiring processes in order to provide the time needed to identify laid-off employees who may be qualified for positions to be opened and to perform the required notice procedure. If it is a close question regarding whether a laid-off employee is qualified for a covered job for which the employer seeks to retain a new hire it is imperative that the employer first consult with legal counsel to assure compliance with the new law.

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.