On 16 April 2021, California Governor Gavin Newsom signed Senate Bill No. 93 (SB 93), a ‘rehiring and retention’ law. SB 93 creates a new Labor Code section (2810.8), which requires certain hospitality businesses to rehire workers who have been laid off due to the COVID-19 pandemic prior to hiring new employees to fill previously laid-off employees’ positions. Employers must provide eligible employees at least five business days to respond to a job offer notice and must award the job depending on seniority if more than one employee is entitled to a specific rehired position.
SB 93 also requires employers to keep records for three years, including records of communications regarding the offers. The new law carries substantial penalties and liquidated damages, including reinstatement, payment of front and back pay wages, and interest. SB 93 takes effect immediately and is set to expire on 31 December 2024.
Hotels with 50 or more guest rooms. This includes any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building.
Publicly or privately owned structures of more than 50,000 square feet or 1,000 seats that are used for public performances, sporting events, business meetings, or similar events, including concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centres.
Employers providing janitorial, building maintenance, or security services.
Private, membership-based business or non–profit organizations that operate a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members.
Airport hospitality operations
Businesses that prepare, deliver, inspect, or provide any other service in connection with the preparation of food or beverages for aircraft crew or passengers at an airport, or that provide food and beverages, retail, or other consumer goods or services to the public at an airport. This excludes carriers certified by the Federal Aviation Administration (FAA).
Airport service provider
Businesses that perform, 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. This also includes the loading and unloading of property on aircraft, assistance to passengers, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning, and sanitisation functions, and waste removal. Similar to Airport Hospitality Operations, Airport Service Providers excludes carriers certified by the FAA.
A ‘laid-off employee’ is any employee who was employed by the employer for 6 months or more in the 12 months preceding 1 January 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, non-disciplinary reason due to the COVID-19 pandemic.
Within five business days of establishing a position, an employer must 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 that become available after the effective date of this section 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.
Subsequently, a laid-off employee will have five business days to respond. In the event multiple employees respond to the same position, the employer must offer the position to the employee with the ‘greatest length of service’ (i.e., total period of time during which an employee has been employed by employer, from the beginning of the employee’s date of hire, which includes any time taken on leave or vacation).
If an employer declines to recall a laid-off employee on the grounds of lack of qualifications, it must provide the laid-off employee a written notice within 30 days and include a list of all employees hired for the position, with their length of service with the employer, along with the reasons why the employer did not rehire the employee.
For at least three years, measured from the date of the written notice regarding the layoff, for each laid-off employee, Labor Code 2810.8 requires an employer to maintain the following records about the employee:
California’s Division of Labor Standards Enforcement (DLSE) is charged with enforcing Labor Code 2810.8. According to the new law, a laid off employee may file a complaint with the DLSE seeking:
Although no criminal penalties may be imposed, any employer, including its agents, who violates this law will be subject to a civil penalty:
‘of one hundred dollars (USD 100) for each employee whose rights under these provisions are violated and an additional sum payable as liquidated damages in the amount of five hundred dollars (USD 500), per employee, for each day the rights of an employee under this section are violated and continuing until such time as the violation is cured, which shall be recovered by the Labor Commissioner, deposited into the Labor and Workforce Development Fund, and paid to the employee as compensatory damages.’