Question: I am in the process of reopening my business. Am I required to recall all of the employees I laid off last year?

Answer: On April 16, 2021, a new law went into effect requiring certain employers to offer vacant positions to certain laid-off employees based on a preference system in accordance with specified timelines and procedures. The law, Senate Bill (SB) 93, will expire December 31, 2024.

SB 93 requires “employers,” defined as:

  • hotels with 50 or more guest rooms,
  • private clubs,
  • event centers,
  • airport hospitality operations and airport service providers, and
  • janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings

to offer laid-off employees all vacant jobs that become available for which the laid-off employees are qualified. The law applies even if the employer relocated its operations, and it also applies to successor employers where there has been a change in control.

“Laid-off employee” means any employee who was employed by a covered employer for 6 months or more in 2019, and whose most recent separation from employment was due to an economic, non-disciplinary reason related to the COVID-19 pandemic. A laid-off employee that meets this definition is qualified for a position if the employee held the same or similar position at the business when the employee was laid-off.  Under SB 93, an employee who was terminated for performance reasons, or for reasons unrelated to the COVID-19 pandemic, is not entitled to rehire.

Laid-off employees who meet the SB 93 definition must be offered a job, in writing, in order of seniority with the employer, and must be given at least 5 business days to accept or decline the offer. An employer that declines to recall a laid-off employee on the grounds of lack of qualifications must provide the laid-off employee a written notice within 30 days stating the reason the employee was not offered a job, and provide a list of each employee that was recalled and the length of service for each such employee.  SB 93 requires employers to retain records for each laid-off employee for at least 3 years from the date of the written notice of the employee’s layoff.

SB 93  prohibits employers from retaliating against employees who exercise their rights under the new law and sets forth a process for filing a complaint with the Division of Labor Standards Enforcement.

On May 4, 2021, the Monterey County Board of Supervisors approved the “Hospitality Worker Right to Recall” Ordinance, which supplements SB 93. Under this  Ordinance, which applies only in the unincorporated area of the County of Monterey, a laid-off employee may bring an action in the Superior Court of the State of California against an employer for violations of SB 93. In order to bring a civil action, the laid-off employee must provide written notice to the employer and provide 15 days for the employer to cure any alleged violation. A laid-off employee who prevails in such a civil action may be awarded hiring and reinstatement rights; actual and statutory damages; and reasonable attorney’s fees and costs. The County Ordinance will go into effect on June 3, 2021 and will expire on January 1, 2022, unless renewed, revised, or extended.

As businesses subject to SB 93 re-open to full capacity, it is important to follow the requirements of laid off employees’ rights to be recalled to their former jobs.