Last Friday, April 16, 2021, Governor Newsom signed into law Senate Bill 93 (SB 93). SB 93 requires certain employers to first offer any new positions to covered employees who were laid off for COVID-19-related reasons. Covered employers include those who own or operate hotels with 50 or more rooms, as well as employers in other related industries—private clubs, event centers, airport hospitality operations, airport service providers, or providers of building service (janitorial, building maintenance, or security services) to office, retail, or other commercial buildings. Covered employees are those who worked two hours or more per week for a covered employer, were employed by a covered employer for at least six months in 2019, and were “separat[ed] from active service” for COVID-19-related reasons.
Once there is an open position, covered employers will have five days to contact covered employees who are qualified for the position to notify them of the opening; this must be done in writing, either by hand or last known physical address, and by email and text where known. Covered employees are qualified if they held the same or similar position at the time of their most recent layoff by the employer. If more than one covered employee is interested in an offered position, the employer must offer the position to the employee with the most seniority, defined as the greatest length of service based on the employee’s date of hire with the company. After the employee receives the offer, they will have five business days to consider it. Additionally, if the employer chooses to fill the open position with someone other than an interested, covered former employee, the employer must send a follow-up notice to the covered employee including specified reasons for the decision to hire someone else over them; this must be done within 30 days of hiring the new employee.
For at least three years, measured from the date of the written notice regarding the employee’s layoff, covered employers must also maintain records of the following:
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 this new law.
This program will remain in place until December 31, 2024, and it also applies to successor employers, so if a business transfers ownership, the new owner must continue to reach out to any of the previous owner’s former employees who qualify. Employers may not retaliate against employees who exercise their rights under SB 93 or those who mistakenly, but in good faith, allege that the employer is not complying with this law. Employees may file a complaint with the DLSE, which may award: hiring and reinstatement rights; front or back pay; value of the benefits the complainant “would have received under the employer’s benefit plan;” and interests on all amounts due and unpaid. The DLSE can also impose civil penalties of $100 for each employee whose rights are violated, as well as liquidated damages of $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.”
Based on this information, it may be wise to consider developing a template letter to provide to qualifying employees that gives them the option to opt out of receiving more offers in the future as well. If you would like our assistance in drafting that letter, or if you have any questions about whether your business will be subject to this new law and what would be required of you as an employer, please call the experts at Young, Cohen & Durrett, LLP at (916) 569-1700.