California’s “Right to Recall” law, codified in California Labor Code Section 2810.8, went into effect in April 2021. Under this law, qualified employees who were laid off by covered employers due to pandemic and Covid-19 related reasons are provided the right of re-hire and retention. Because this law remains in effect until December 31, 2024, covered employers should make sure they understand and comply with SB 93 in their hiring and re-hiring practices or risk violating California law and facing penalties.
The Right to Recall law is applicable only to employers in certain limited industries. These include hospitality industries such as hotels, private clubs, restaurants, event centers; janitorial, building maintenance, and security service industries; employers of hotels and private clubs with 50 or more guest rooms; and event centers. While there are limitations on which employers are considered eligible, SB 93 applies to all covered employers regardless of how many or few employees the business has.
Similarly, employees must also meet certain criteria to reap the benefits of the employee recall law. More specifically, SB 93 applies to laid-off employees who were employed for at least six months prior to January 1, 2020, who have worked a minimum of two hours per week, and who were laid off due to Covid-19 related economic reasons. These reasons include economic impact and lack of business, government shutdown orders, or public health orders. Employees must have been laid off for non-disciplinary reasons to qualify for recall.
To comply with this law, covered employers must provide eligible employees who held the same or similar position a written offer of an available position within five days of a job opening, keep the offer open for five business days to give the employee time to accept, and continue offering positions to the qualified employee even if the employee has previously declined an offer to be rehired for a prior position. Employers may choose to decline to recall a laid-off employee due to an employee’s lack of qualifications and hire someone who matches the qualifications instead. However, employers must provide a written notice explaining this to the laid-off employee within 30 days.
Additionally, employers must keep records of the laid-off employee’s employment offers and communications, starting from the date of layoff, and include the employee’s name and contact information, job classification, date of hire, and all communications between the employer and employee. Should there be a valid collective bargaining agreement, these requirements may be waived only if a right to recall waiver is clearly, unambiguously, and explicitly stated.
Employers may want to review SB 93 and ensure their compliance with this law and its requirements. One way to ensure compliance is to create an organized system that includes a list of qualified potential employees, fully check the list prior to posting about an open position, and create boilerplates of offer letters and denial of recall explanation letters. The penalties for noncompliance substantially rise after the first violation and can be detrimental to businesses.
Employers may want to contact their Labor and Employment lawyer for assistance or questions. Palmer Kazanjian offers beneficial guidance to facilitate compliance with SB 93 and other complex labor and employment law matters.