California Enacts Law Requiring Certain Employers To Offer Open Positions To


As travel begins to resume in California, the Legislature has
imposed additional stringent requirements on employers in the
travel and hospitality industries. Beginning April 16, 2021, Senate Bill 93 will require employers in these
industries to offer job positions back to their laid-off employees
as they become available (within five business days). The bill
creates California Labor Code Section 2810.8 which will not expire
until December 31, 2024. The new section requires covered employers
to recall laid-off employees, in order of seniority, for all
positions for which they are qualified. Employers must make job
offers in writing, either by hand or to their last known physical
address, and by email and text message, and keep detailed records
for three years. The bill also requires covered employers to give
their laid-off employees at least five business days to accept or
decline the offer. If several employees qualify for the same
position, employers may make concurrent-conditional offers to more
than one individual conditioned on seniority.

It is important to note that an employer who declines to recall
a laid-off employee because of lack of qualifications must provide
his reasons to the employee in writing within 30 days. There is
some uncertainty associated with this notice requirement. Indeed,
the bill does not specify whether notice must be provided to each
employee deemed unqualified for the open position or only to the
most senior laid-off employee who would have been offered the
position.

Who is a covered “laid-off” employee?

To be covered by this bill, an employee must meet two criteria:
(1) the employee must have been employed by the employer for at
least six months in the 12 months preceding January 1, 2020; and
(2) the employee’s most recent separation from the employer
must have been due to a reason related to the COVID-19 pandemic,
including a public health directive, government shutdown order,
lack of business, a reduction in force, or other economic
reason.

Additionally, to be eligible for rehire, the laid-off employee
must be “qualified” for the position. An employee is
qualified if he or she held the same or similar position with the
employer at the time of the employee’s most recent layoff. What
is considered a “similar” position is not specifically
defined by the bill.

Who is a covered employer?

The bill applies to the following employers:

  • Airports: including adjoining areas used or
    intended for airport buildings, facilities, as well as airport
    rights of way together with the buildings and facilities;
  • Airport hospitality operations: defined as a
    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, or that provides food
    and beverage, retail, or other consumer goods or services to the
    public at an airport. The bill excludes any air carrier
    certificated by the Federal Aviation Administration.
  • Airport service providers: providing functions
    on the property of an airport that are directly related to the air
    transportation of persons, property, or mail, whether the contract
    is with a passenger air carrier, airport facility management, or
    airport authority.
  • Building services: which includes only
    employers providing janitorial, building maintenance, or security
    services to office, retail, or other commercial buildings.
  • Event centers: defined as structures of more
    than 50,000 square feet or 1,000 seats, used for the purposes of
    public performances, sporting events, business meetings, or similar
    events. This includes any contracted, leased, or sublet premises
    connected to or operated in conjunction with the event center’s
    purpose (for example, food preparation facilities, concessions,
    retail stores, restaurants, bars, and parking facilities).
  • Hotels: with 50 or more guest rooms. The bill
    also covers any contracted, leased, or sublet premises connected to
    or operated in conjunction with the building’s purpose, or
    providing services at the building.
  • Private club: defined as any organizations
    operating a building or complex of buildings containing at least 50
    guest rooms offered as overnight lodging to members.

It is also important to note that the bill adopts a broad
definition of “employer.” The requirements imposed by the
bill apply even if the employer hired their employees indirectly
through the services of a temporary services firm, staffing agency
or similar entity, so long as the employer exercises control over
the wages, hours, or working conditions of the employee.

Strict Recordkeeping Requirements

The new legislation contains detailed recordkeeping requirements
for covered employers. In addition to retaining copies of the
notices sent to laid-off employees, employers must keep records for
three years (from the date of the issuance of the notice), of the
following information: (1) the employee’s full legal name; (2)
the employee’s job classification at the time of separation;
(3) the employee’s date of hire; (4) the employee’s last
known home address; (5) the employee’s last known email
address; and (6) the employee’s last known telephone
number.

Additionally, employers are required to maintain all records of
communications with the employee concerning offers of employment
made to the employee pursuant to the bill.

Penalties and Damages for Non-Compliance

Importantly, the bill sets out extensive penalties and damages
for failing to comply that could prove extremely costly. In
addition to requesting re-hiring and reinstatement, covered
employees may recover past and future lost wages, the value of the
benefits they would have received under the employer’s benefit
plan, and interest on all amounts due and unpaid. The Division of
Labor Standards Enforcement may also impose a civil penalty of $100
for each employee whose rights were violated. At its discretion,
the Division may also decide to impose liquidated damages of $500
per day for each individual “until such time as the violation
is cured.”

The bill also prohibits employers from retaliating against
employees who exercise their rights under the new law. That
includes employees who mistakenly, but in good faith, allege that
the employer is not complying with the bill.

Conclusion

Time is of the essence. Because the timeframe imposed by the new
legislation is relatively short, employers in the travel and
hospitality industries should be prepared to identify qualifying
employees in advance to be in a position to issue notices promptly
as positions become available. To that end, it would be helpful to
prepare a list of laid-off employees identifying the employees’
names, prior position and qualifications, years of service, and
contact information (including email addresses if known). It would
also be advisable to incorporate the requirements set out by the
bill into written policies and create templates to be sent to
laid-off employees to facilitate the process. Covered employers
should seek legal advice as soon as possible in connection with
this legislation.

The legal landscape continues to evolve quickly and there is a
lack of clear-cut authority or bright line rules on implementation
of the new law. This article is not intended to be an unequivocal,
one-size fits all guidance, but instead represents our
interpretation of where applicable law currently and generally
stands. This article does not address the potential impacts of the
numerous other local, state and federal orders that have been
issued in response to the COVID-19 pandemic, including, without
limitation, potential liability should an employee become ill,
requirements regarding family leave, sick pay and other issues.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be…



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