Newsom Enacts Statewide Right of Recall Bill for Hospitality IndustryMay 19, 2021
On April 16, 2021, Governor Newsom signed Senate Bill (SB) 93, which requires employers in the hospitality industry to offer employees laid off due to the COVID-19 pandemic preferential hiring. As a budget bill, SB 93’s provisions take effect immediately. The bill’s provisions will expire on December 31, 2024.
This ordinance applies specifically to employers in the following hospitality-related industries:
- Private Clubs
- Event Centers
- Airport Hospitality Operations
- Airport Service Providers
- Building Services (including janitorial, building maintenance and security services) provided to office, retail and other commercial buildings
Significantly, SB 93’s provisions apply when an employer relocates within California, and to successor employers when there has been a change in ownership or control.
Covered Employees and Provisions
The bill requires covered employers to offer qualified laid-off employees vacant positions based on a preference system. Laid-off employees are considered qualified for a position if they held the same or a similar position at the time of the layoff. Under SB 93, a laid-off employee is defined as any employee who:
- was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and
- was most recently separated from active service 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 related to the COVID-19 pandemic.
Covered employees must be offered reemployment in order of seniority with the employer, and must be given 5 business days to respond to offers of reemployment.
Employers are prohibited from refusing to employ, terminating, reducing compensation, or taking other adverse action against any laid-off employee for seeking to enforce their rights under these provisions.
Record-Keeping and Enforcement
All positions that become available after April 16, 2021 must be offered to qualified laid-off employees. Employers must offer a qualifying employee reemployment within 5 days of establishing a relevant position. This offer must be delivered in writing by hand or home delivery, and by email and text. Employers that do not offer a laid-off employee reemployment on the grounds of lack of qualifications, and hire someone other than a laid-off employee, must provide the laid-off employee written notice within 30 days detailing the reasons for the decision and the length of service of the employee hired instead.
Employers are also required to retain records that enable them to contact laid-off employees when positions become available, including:
- 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, email address, and telephone number
- a copy of the written notices regarding the layoff provided to the employee
- all records of communications between the employer and the employee concerning offers of employment made to the employee under this bill.
The Division of Labor Standards Enforcement (DLSE) has sole jurisdiction to enforce SB 93. Laid-off employees may file a complaint with the DLSE for violations of the provisions of this bill, and employers may face civil penalties for noncompliance.
Resources for California Employers
View the full text of Senate Bill 93 here.
Access the DLSE’s website here.
If you have questions regarding the application of SB 93 to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.