Hotels, Security Services and Others Must Offer Openings to Pandemic-Affected Former Staff

New  California Labor Code 2810.8 requires all hospitality and business services employers — e.g. hotels; private clubs; event centers; airport-related hospitality operations or service providers; and janitorial, building maintenance or security services provided to office, retail or other commercial buildings — to offer new positions to qualified former employees laid off due to COVID-19, through 2024.

Governor Newsom announced: “As we progress toward fully reopening our economy, it is important we maintain our focus on equity…by assuring hospitality and other workers displaced by the pandemic are prioritized to return to their workplace.”

Employees qualify if: ● employed in the hospitality or business services field by the employer for at least six months in the 12 months preceding January 1, 2020; ● worked “at least two hours in a particular week”; and ● were laid off due to the pandemic (including a public health directive, government shutdown order, lack of business, or a reduction in force).  Former union employees fitting these criteria are eligible unless explicitly waived in a valid collective bargaining agreement.

Covered employers must:

• Within five business days of establishing an open job position, offer covered employees in writing, either by hand or to their last known physical address, and by email and text, all available positions for which they qualify (i.e., they held the same or similar position at the time of most recent layoff); and

• Give recipients at least five business days from date of receipt to accept or decline.

Employers may make simultaneous, conditional employment offers to multiple covered employees, but the position must be ultimately offered to whoever has seniority (based on hire date).

If the employer “declines to recall a laid-off employee” due to “lack of qualifications” and instead hires someone else, the employer must provide a written notice to the laid-off employee within 30 days describing “the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.”

Recordkeeping:  Employers must maintain all relevant records for at least three years for each laid off employee including name, job classification, hire date, last known address and other contact information, and copies of the written notices and all records of communications concerning this job recall procedure; and comply with the law’s anti-retaliation provisions.

Enforcement: California’s Division of Labor Standards Enforcement will directly field employee complaints and award damages, which can include hiring and reinstatement rights, recouping lost pay and benefits, civil penalties of $100 per affected employee, and ongoing damages of $500 per day per employee.

Employers should promptly familiarize their hiring managers with the new law and any similar local government ordinance(s); document the reason(s) for every employee’s separation, such as voluntary quit, retirement, layoff (specify if COVID-related or not) and termination for cause; and implement a compliant rehire process, prepare sample notices, and confirm accurate record-keeping before filling any job vacancy.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s Even Newer in 2021 California Expands COVID-19 Paid Sick Leave –Detailed, Retroactive Requirements for Employers with 26 or More on Payroll (April 9, 2021)
• Stay – Away “Exclusion” Pay – Required Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021)
• One Certain Constant: Change – New Retroactive Paid Pandemic Leave Requirement – Revisions Coming 2021 Handbook & Forms (January 21, 2021)

Cindy Bamforth
April 30, 2021