Will California’s COVID-19 Rehiring and Retention Requirements Outlive the Pandemic?

As we dream of a “post-COVID” world, some obligations stemming from the pandemic will certainly be with us for some time.  One such obligation for some employers to note is California’s rehiring and retention requirements.

California Senate Bill 93, which added Labor Code section 2810.8, brings statewide requirements for covered employers to offer available job positions to employees laid-off due to the COVID-19 pandemic.  Covered businesses include hotels, private clubs, event centers, airport hospitality operations, airport service providers, and those providing janitorial, building maintenance or security services to office, retail or other commercial buildings.  This section also applies even when an employer experiences certain ownership or organizational changes, for example, a change in ownership where the business is conducting the same or similar operations as before the COVID-19 state of emergency.

The law requires that, within 5 business days of establishing a position, a covered employer offer its employees laid off due to COVID-19 pandemic, in writing, “all job positions that become available [after its effective date] for which the laid off employees are qualified.”  Such qualification is determined based on the laid off employee holding the same or similar position at the time of the recent layoff.  If more than one employee is entitled to preference for a position, the employer must offer the position to the laid off employee with the greatest length of service on the employee’s date of hire.  The employee is afforded 5 business days to respond to the offer. 

To be eligible, the employee must have been employed for at least 6 months in the 12 months preceding January 1, 2020.  In addition, the employee’s most recent separation from active service must be due to a reason related to the COVID-19 pandemic, including a public health directive, government shut down order, lack of business, reduction in force, or other economic, nondisciplinary reason due to the COVID-19 pandemic.

An employer that declines to recall a laid off employee on the ground of lack of qualifications, and instead hires someone other than a laid off employee, must provide the laid off employee a written notice within 30 days with specified information, including the length of service with the employer of those hired in lieu of that recall as well as all reasons for the decision. 

Importantly, provisions of this law may be waived by a valid collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. 

Employers must keep specified records for three years, including certain information about each employee, their employment, notices of layoffs, and communications regarding offers made under this law.

The bill also includes anti-retaliation provisions for laid-off employees seeking to enforce their rights under this law.

Takeaways

This is a good reminder to review your company’s rehire and retention requirements to ensure compliance with applicable law.

Since the new legislation, which went into effect on April 16, 2021, remains in effect until December 31, 2024, this is something to track for at least the next few years.

Even employers outside of California should consider whether similar obligations exist in the states or local jurisdictions where they have operations and what steps, if any, need to be taken to comply. 

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Conn Maciel Carey LLP
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