Governor Newsom Signs New Employee Recall Law (SB-93) – Effective Immediately

SB-93 was signed by Governor Newsom on April 16, 2021 and is effective immediately. The new law requires certain employers to recall eligible workers who were laid-off for reasons related to COVID-19 if their prior positions become available. Here are the key parts of the law employers need to know:

• Covered Employers: SB-93 only applies to employers who operate an “enterprise,” which is defined as a “hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building service to office, retail, or other commercial buildings” regardless of the number of employees.
  • Hotel means a building offering overnight lodging to the public with 50 or more guest rooms, or suites of rooms.
  • Private club means a membership-based business that operates a building with 50 or more guest rooms, or suites of rooms, for overnight lodging for members.
  • Building service means janitorial, building maintenance, or security services for office, retail, or other commercial buildings.
• Laid-Off Employees: Laid-off employees are eligible to be offered employment if they were: (1) employed for six months or more from January 1, 2019 to January 1, 2020, full-time or part-time; and (2) most recently separated from active service due to a “reason related to the COVID-19 pandemic.” Reasons related to COVID-19 include: 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.
• Requirements: Covered employers must offer laid-off employees open positions that (1) become available after April 16, 2021, and (2) are the same or similar to the laid-off employee’s position at the time of the employee’s most recent layoff. Employers must make an offer within five business days of establishing the position, and give the employee five business days to accept or decline the offer.
  • The offer must be made in writing and delivered in person or by mail to the employee’s last known address, and by email and text message if the employer has that contact information.
  • If more than one laid-off employee qualifies for a position, the employer must offer the position to the employee with the longest length of service, which is the total of all periods the employee worked for employer since their hire date including time when they were on leave or vacation.
  • If the laid-off employee is not qualified for the open position, the employer must provide written notice within 30 days stating the length of service of the individual who was hired and the reasons for the employer’s decision not to hire the laid-off employee.
• Record Retention: For each laid-off employee, employers must maintain the following records for three years from the date of the written notice of layoff:
  • 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 residential address
  • The employee’s last known email address
  • The employee’s last known telephone number
  • A copy of written layoff notices provided to the employee, and
  • All records of communications between the employer and the laid-off employee concerning offers of employment made pursuant to SB-93

The law allows laid off employees to file a complaint with the Division of Labor Standards Enforcement (“DLSE”) for violations of SB-93, and employers who violate the provisions of the law may be subject to penalties. The full text of the law can be found here.

If you have any questions about this or any other employment related matters, please contact DP&F’s employment team, Jennifer Douglas, Marissa Buck or Sarah Hirschfeld-Sussman.