On April 16, Governor Gavin Newsom signed a statewide right of recall law (Senate Bill 93). SB 93 is similar to the Los Angeles City recall ordinance and the San Francisco right to reemployment legislation. It is effective immediately and will remain in effect through December 31, 2024.
Here’s what you need to know:
The new law does not apply to all employers. It applies generally to hotels, private clubs, event centers, airport hospitality operations, and airport service providers, while also applying specifically to janitorial, building maintenance and security services provided to office, retail and other commercial buildings.
- “Hotel” means a residential building that is designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotel” also includes 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” means a private, membership-based business or nonprofit organization that operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members.
- “Event center” means a publicly or privately owned structure of more than 50,000 square feet or 1,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers.
- The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
- “Airport hospitality operation” means 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.
- “Airport service provider” means a business that performs, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail, including, but not limited to, the loading and unloading of property on aircraft, assistance to passengers under Part 382 (commencing with Section 382.1) of Title 14 of the Code of Federal Regulations, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal.
- “Building service” means janitorial, building maintenance, or security services.
- The new law protects each “laid off employee” who:
- Worked two or more hours per week, and
- Was employed by the employer for six months or more in the 12 months preceding January 1, 2020, and
- Whose most recent separation from active service was 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, nondisciplinary reason due to the COVID-19 pandemic
- Within five business days of establishing new positions, an employer shall offer its laid-off employees in writing, either by hand or to their last known physical address, and by email and text message to the extent the employer possesses such information, all job positions for which the laid-off employees are qualified. A laid-off employee is qualified for a position if the employee held the same or similar position at the enterprise at the time of the employee’s most recent layoff with the employer.
- Note that unlike the LA ordinance, this does not include persons who could perform the position with the same amount of training as a new hire. Instead, the law applies only to those employees who held the same or similar position at the time of layoff.
- If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service based on the employee’s date of hire for the enterprise.
- If an employer declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee, the employer must provide the laid-off employee a written notice within 30 days including the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.
- SB 93 expressly permits sending simultaneous offers to multiple rehire candidates, and then choosing from those who accept the offer based on seniority.
- Laid-off employees must be given at least five business days to accept or decline the offer.
- The law requires employers to retain the following records for at least three years, measured from the date of the written notice regarding the layoff, for each laid-off employee: 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 address of residence; the employee’s last known email address; the employee’s last known telephone number; and a copy of the written notices regarding the layoff provided to the employee and all records of communications between the employer and the employee concerning offers of employment made to the employee pursuant to the recall law.
Other Key Aspects of the Law
- The statewide law does not contain the “cure notice” provisions found in the LA and Long Beach ordinances. (Before bringing a lawsuit to enforce rights under either ordinance, a worker must provide written notice to the employer of the alleged violations and a statement of facts to support the claimed violation. The employer then has 15 days from receipt of that notice to cure any alleged violation. If no cure occurs, only then may a lawsuit proceed.)
- The statewide law doesn’t give employees a right to sue in their own names, but employees may file complaints with California’s Division of Labor Standards Enforcement (DLSE). The DLSE may remedy a violation by ordering hiring and reinstatement, granting front or back pay, as well as benefits the employee would have received under the employer’s benefit plan. The DLSE also is given authority to impose penalties and liquidated damages.
- The obligations under SB 93 will attach even with changes to business structure and operations. The law provides that it is applicable in any of the following circumstances:
- The ownership of the employer changed after the separation from employment of a laid-off employee but the enterprise is conducting the same or similar operations as before the COVID-19 state of emergency.
- The form of organization of the employer changed after the COVID-19 state of emergency.
- Substantially all of the assets of the employer were acquired by another entity that conducts the same or similar operations using substantially the same assets.
- The employer relocates the operations at which a laid-off employee was employed before the COVID-19 state of emergency to a different location.
- All or any part of the new law may be waived by a valid collective bargaining agreement containing clear and unambiguous waiver language.
- SB 93 doesn’t preempt local / city right of recall ordinances (e.g., Long Beach, Los Angeles, San Francisco, Carlsbad, Oakland, Pasadena, and Sacramento) which may impose greater restrictions or burdens.
Note that there are similar recall ordinances outside of California, including in Baltimore, Minneapolis, and Philadelphia. For assistance meeting your obligations under the various right to recall laws, please contact your Baker McKenzie employment lawyer.