How California’s SB 93: COVID-19 “Rehiring and Retention” Law Can Affect You

Governor Gavin Newsom has signed Senate Bill 93 into law, requiring that some employers make written job offers to employees they laid off because of the pandemic.

Once the offers are made, employees have five business days to respond and, if more than one employee responds, the employer must award the job by seniority. Employers must keep records of this activity for three years.

The California Division of Labor Standards Enforcement (DLSE) will enforce the new law and may order reinstatement, front and back pay, and benefits, as well as impose substantial penalties and liquidated damages.

That’s why many employers should begin compliance preparations immediately – by compiling a list of laid-off employees by classification, along with other information that the DLSE requires. These employers also may wish to begin creating the forms that the law requires, including the conditional offer of employment and written notice that the employer is not rehiring a laid-off employee for a particular position.

Are you a covered employer?

SB 93 applies to the following employers:

• Hotels and private clubs with 50 or more guest rooms.
• Event centersincluding concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers.
• Airport hospitality and Airport service providers.
• Janitorial, building maintenance or security servicesfor office, retail, or other commercial buildings.

Are your employees covered?

In order for SB 93 to provide protection, an employee must have:

• Worked two hours or more 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 due to a reason related to the COVID-19 pandemic.

Covered employers (re-)establishing a position must offer the position in writing to laid-off employees within five business days, and the employer must deliver the offer by hand or to their last known physical address, and by email and text message.

A laid-off employee is qualified for the position offered if the employee held the same or similar position at the time of the employee’s most recent layoff with the employer.

If more than one qualified laid-off employee accepts the position, the employer must rehire the individual with seniority – the greatest length of service based on the employee’s previous date of hire.

No Retaliation

SB 93 prohibits employers from retaliating against employees who exercise their rights under the new law. The statute emphasizes that an employer must not retaliate against employees who mistakenly, but in good faith, allege that the employer is not complying with SB 93.

SB 93 is in effect now and carries substantial penalties. As the California economy continues to reopen, covered employers should begin their compliance efforts now.

I can help California businesses take the steps to compliance. Let’s talk and we’ll develop a plan to keep you in business. Interested? Call (805) 503-4722 or email me at rshelton@vanbeurden.com today!

 

Material in this blog appeared in the National Law Review