Before the pandemic, businesses in California that need to recall employees from a layoff could pick and choose which employees they wanted to bring back. This meant that employers could recall employees in any order and could even decide not to recall particular workers because of their previous job performance.
However, during the pandemic, California cities started adopting "right-to-recall" ordinances that took away the flexibility and power employers had over the recall process and the criteria they use to select or pass over laid off employees. Under the right-to-recall ordinances, laid off workers must be recalled in order of seniority. This means the most senior qualified employee must be recalled first.
While cities like Los Angeles, San Francisco, and Long Beach first championed these ordinances, other cities in California and outside the state soon followed and adopted their versions of the law. In 2021, California passed SB 93 through a budget bill. SB 93 which applied the right of recall to specific industries on a statewide basis.
Which Employers Are Covered By SB 93?
SB 93 doesn’t cover every employer in California. SB 93 applies to hotels, private clubs, event centers, airport hospitality operations, and airport service providers. It also covers janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings.
Under SB 93, "laid-off employees" are defined as individuals employed by the employer for 6 months or more in the 12 months before January 1, 2020, and whose most recent separation from active service was for reasons related to the COVID-19 pandemic.
If a covered employer wants to hire a new employee, then they are required by law to first offer the available position to a qualified employee who was laid off during the pandemic. In order to be covered by the new recall law, the laid-off employee must have held the same or similar position with the employer when the employee was most recently laid off by employer. SB 93 requires employers to offer laid-off employees positions in order of seniority.
What Are My Rights If I’m Recalled By a Former Employer?
Employers are required by law to give laid-off employees at least five business days to accept or decline a job offer. Simultaneous, conditional offers of employment can be extended be to more than one laid-off employee, however, the final choice of which laid-off employee is awarded the position must be determined by seniority.
SB 93 contains language that requires employers to recall laid-off employees even if there have been significant changes to the business’s structure and operations. If a business covered by SB 93 lays off employees due to COVID-19 and is sold then sold, the new owner is legally obligated to recall the employees previously laid off by the former owner. The obligations of SB 93 also remain in effect if an employer relocates its operations to a different part of California.
SB 93 also features anti-retaliation provisions and record-keeping requirements that state employers must keep detailed records relating to offers of recall for three years.
How Is SB 93 Enforced and What are the Legal Remedies?
While the bill doesn’t create a private right of action, its scope of enforcement is limited to claims brought by the California Division of Labor Standards Enforcement. Remedies for violating SB 93 include:
- Reinstatement
- Back pay
- Benefits
- Injunctive relief
- $100 fine for each employee whose rights were violated, plus an extra $500, per employee, for each day their rights were violated
SB 93 also contains a collective bargaining agreement waiver provision, which states that any such waiver of statutory recall rights must be explicitly set forth in that agreement in clear and unambiguous terms.
Notably, SB 93 does not contain the "right to cure." The first ordinances that appeared in cities like Los Angeles and Long Beach have right to cure provisions. Under these ordinances, a worker is required to provide written notice to the employer of the alleged violations and a statement of facts to support the claimed violation before they can file a lawsuit to enforce their rights under the ordinance. The employer has 15 days from when they receive the written notice to cure any alleged violation. If the employer deicides not to implement anything to cure the violation, then, and only then, can a lawsuit proceed.
Business owners in California praised the right to cure provision, and the early local ordinances were touted as a win-win for both employers and employees. Despite its popularity, the right to cure isn’t covered by the language of SB 93.
Do you have more questions about right-to-recall laws in California? Then please call Badame Law Group, APC to set up a case consultation with our knowledgeable legal professionals. We are prepared to put our decades of experience to work for you, so please get in touch with us today!
