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Employee Recall Bill Signed

by Jennifer Shaw and Melissa Whitehead | | Apr 16, 2021

On April 16, 2021, California Governor Newsom signed Senate Bill 93, which is effective immediately. The new law requires certain employers to recall workers laid-off for reasons related to COVID-19 if and when positions become available.

Which Employers are Covered by SB 93?
SB-93 applies to employees (including those from temporary service providers) of certain hotels, private clubs, event centers, airport hospitality operations, airport service providers, and providers of services to office, retail, or other commercial buildings. The statute defines each of these “enterprises,” and all covered employers must comply, regardless of their head count.

What Does SB 93 Require?
Covered employees must offer “laid-off employees” positions that (1) become available after April 16, 2021, and (2) are the same or similar to the laid-off employee’s position at the time of the employee’s most recent layoff. Employers must make an offer within five business days of establishing the position, and give the employees five business days to accept or decline the offer.

Who are “Laid-Off Employees?”
“Laid-off employees” are eligible to be offered employment if they were: (1) employed for six months or more from January 1, 2019, to January 1, 2020, full-time or part-time; and (2) most recently separated from “active service” for a “reason related to the COVID-19 pandemic.”

What Qualifies as a “Reason Related to the COVID-19 Pandemic?”
The following reasons for layoff are covered by SB 93:
• A public health directive
• A government shutdown order
• Lack of business
• Reduction-in-force
• Other economic, non-disciplinary reasons due to the COVID-19 pandemic

What if There are More Laid-Off Employees than Open Positions?
If more than one employee is entitled to recall, then the employer must offer the position to the laid-off employee with the longest service based on the employee’s date of hire. “Length of service” includes all time of active service after the employee’s hire date, including any time on leave or vacation. If multiple laid-off employees are eligible for an open position, employers may make “simultaneous, conditional offers of employment to laid-off employees, with a final offer of employment conditioned on application of the preference system.”

How Should Employers Communicate a Job Offer?
SB 93 requires employers to make job offers in writing, and deliver them by hand or mail to an employee’s last known address. In addition, employers must make offers by email and text message, if they have the information to do so.

What if the Laid-Off Employee is Not Qualified for the Open Position?
Employers may decline to recall a laid-off employee for lack of qualifications. However, within 30 days, the employer must provide the employee with a written notice stating the length of service of the individual hired and the reasons for the employer’s decision not to hire the laid-of-employee.

What Records Must Employers Maintain to Comply with SB 93?
For each laid-off employee, employers must maintain the following records for three years from the date of the written notice of layoff:
• The employee’s full legal name
• The employee’s job classification at the time of separation from employment
• The employee’s date of hire
• The employee’s last known residential address
• The employee’s last known email address
• The employee’s last known telephone number
• A copy of written layoff notices provided to the employee, and
• Records of employer communications to other employees concerning offers of employment to the laid-off employee pursuant to SB 93

Can a Collective Bargaining Agreement Waive SB 93’s Requirements?
Yes. However, such a waiver must be “explicitly set forth in that agreement in clear and unambiguous terms.”

Read the full text of SB 93 here.

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