By Christopher Dolan and Mari Bandoma Callado
I was laid off, along with my whole crew, when COVID first hit. I worked for a company that provided janitorial and building maintenance to a commercial building. Now, my company is hiring again. Can I reapply to my old job, or are they supposed to notify me if I can come back? I have only found spotty employment; in the meantime, I would really like to go back to my old job.
— Ray B., Concord.
Thank you for this excellent question, Ray. We are sorry you were one of the many people laid off from your position because of COVID-19.
As COVID-19 restrictions are generally being lifted, many businesses have opened back up and, thankfully, are rehiring many of the people who had been placed out of work during the shutdown. Before the pandemic, California businesses without a collective bargaining agreement were generally unrestricted in their discretion to pick and choose which, if any, employees would be recalled to work following a layoff. However, during the pandemic, many cities adopted “right to recall” ordinances that restricted employer hiring discretion after a layoff.
In April, California followed suit by enacting Senate Bill 93, which created Labor Code Section 2810.8, which requires employers in certain industries (see covered employers below) to make written offers to employees laid off because of a reason related to the COVID-19 pandemic (e.g., public health directive, government shut down order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic). This law does not expire until Dec. 31, 2024.
Covered Employers: Covered employers generally include hotels with 50 or more guest rooms; private clubs that operate a building or complex of buildings containing at least 50 guest rooms; publicly or privately owned event centers of more than 50,000 square feet or 1,000 seats used for public performances, sporting events, business meetings or similar events; airport hospitality operations that provide services related to the preparation of food or beverages for aircraft crew passengers, and to the public at an airport; airport service providers that provide services directly related to the air transportation of persons, property or mail; and employers that provide janitorial, building maintenance and security services provided to office, retail and other commercial buildings.
Covered Employees: To be protected by Labor Code Section 2810.8, an employee must have worked at least two hours per week by the covered employer, been employed by a covered employer for at least six months in the 12 months preceding Jan. 1, 2020, and be separated from active service due to a reason related to the COVID-19 pandemic. Any employer of a covered enterprise must comply with the recall provisions regardless of its number of employees.
Employers’ Obligations to Covered Laid-Off Employees: Within five business days of establishing a position, a covered employer must offer its laid-off employees all job positions that become available for which the laid-off employees are qualified in writing. A laid-off employee is “qualified” for a position if the employee held the same or similar position at the time of the employee’s most recent layoff with the employer. A laid-off employee who is offered a position has to be provided at least five business days from the date of receipt to either accept or decline the offer. We recommend responding in writing as soon as possible and keep a written copy of your acceptance. If your contact information has changed, please make sure to update your former employer with all current contact information to facilitate the employer contacting you and avoid missing a recall opportunity.
Simultaneous, conditional offers of employment may be made by the employer to more than one laid-off employee, with the final determination of which laid-off employee gets the position determined by seniority. Seniority is based on total length of service with the employer, not on the basis of job seniority.
In the event that an employer declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee, the employer is required to provide the laid-off employee with written notice within 30 days. The notice must specify the length of service with the employer of those hired in lieu of that recall and all reasons for the decision.
Labor Code Section 2810.8 also contains anti-retaliation provisions and requires employers to keep records for three years. The records must include the laid-off employee’s full legal name, job classification at time of layoff, date of hire, last known residence, email address and phone number, as well as layoff notices and all communications regarding employment offers made under Labor Code section 2810.8’s requirements.
Enforcement and Remedies: The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction over the enforcement of Labor Code Section 2810.8. While there is no private right of action, laid-off employees may file a complaint for a violation of Labor Code Section 2810.8 with the DLSE, and the DLSE may bring a civil action in court.
Remedies for violations include reinstatement, back pay, benefits, and interest on all amounts due and unpaid. Civil penalties may also be imposed, including $100 for each employee whose rights are violated, and liquidated damages of $500 per employee for each day an employee’s rights have been violated.
If you believe that your recall rights were violated, you may report the violation to the DLSE for investigation.
City and County Ordinances: Cities and counties may enact greater protections through local ordinances. Labor Code Section 2810.8 does not preempt right-to-recall ordinances adopted by multiple cities throughout California. Some of the cities and counties that have enacted such ordinances include Carlsbad, Glendale, Los Angeles County, the City of Los Angeles, Long Beach, Monterey County, Oakland, Pasadena, San Francisco, Santa Clara, San Diego and Santa Monica.
If you believe your employer used COVID-19 as a cover for discriminatory layoffs during the pandemic, and/or you have questions about whether Labor Code Section 2810.8 applies to you, please contact an employment attorney and/or the DLSE.
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Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Mari Bandoma Callado is a Senior Associate Attorney based in our Oakland CA office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Email questions and topics for future articles to: email@example.com. Each situation is different and this column does not constitute legal advice. We recommend that you consult with an experienced trial attorney to fully understand your rights.