Senate Bill 93 was signed into law by Governor Newsom on April 16, 2021 and became effective immediately. The bill impacts employers who operate “enterprises” defined as hotels, private clubs, event centers, airport hospitality operations, airport service providers, or the provision of building service to office, retail or other commercial buildings (“Building service” means janitorial, building maintenance, or security services). These terms are all further defined within the bill. Within five business days of establishing a position, covered employers must offer laid-off employees those job positions that become available for which the laid-off employees are qualified. A laid-off employee is qualified for the position if the employee held the same or similar position previously at the enterprise at the time of the employee’s most recent layoff with the employer.
‘Laid-off employees’ include any employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic, including 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. As the bill anticipates, numerous laid-off employees may qualify for the position. Therefore, the bill requires when more than one employee is qualified for a position, the employer shall offer the position to the employee with the greatest length of service based on the employee’s date of hire for the enterprise. This may be accomplished by making simultaneous conditional offers of employment to laid-off employees with a final offer of employment conditioned on application of the length of service preference system.
At present, it is arguable that the bill requires employers to provide the covered laid-off employees with the same terms, benefits, and pay that they previously received. This may be clarified in future Division of Labor Standards Enforcement regulations.
After laid-off employees receive notice of the position, they have 5 business days from receipt to accept or decline the offer. If an employer chooses to hire a candidate other than the laid-off employee, the employer must provide a notice to the laid-off employee including certain details of the hired candidate, such as length of service with the employer.
In addition to the above obligations, the bill imposes various recordkeeping requirements and provides potential liability for certain damages for failure to comply with the requirements of SB 93.
If you have questions about complying with the requirements of SB 93 or would like general advice, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.