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READY TO RE-OPEN? Be Aware of California’s New Right-of-Recall Law and Implications for Employers in the Hospitality, Event Center, Airport, Private Club, and Commercial Property Service Industries

Posted on: June 22nd, 2021

By: Mandy Hexom

On April 16, 2021, Governor Newson signed into law a right to notice and recall of certain employees in the hospitality, event center, airport, private club, and commercial property service industries who were laid off due to the effects of the COVID-19 pandemic. This new law is set forth in California Labor Code Section 2810.8, which became effective immediately and does not expire until December 31, 2024.

What businesses or employers must comply?

  1. Hotel Employers
  2. Event Center Employers
  3. Airport Service Providers
  4. Airport Hospitality Employers
  5. Private Club Employers
  6. Commercial Property Service Providers

What if the ownership, organization, or location of the business changed?

Even if the ownership or organization of the business changed, if the business still operates the same or similar operations as before the COVID-19 state of emergency, the business must comply with this new law. The same is true if the business moved offices or locations.

Requirements of the Right-to-Recall Law

  1. Covered Employees: This law applies to laid-off workers that performed at least two hours of work during a six month period (including leave and vacation time), in the 12 months preceding January 1, 2020, that were terminated or separated due to a reason related to the COVID-19 pandemic and not due to a disciplinary reason. The employee is qualified if the employee held the same or similar position at the time of the COVID-19 lay-off.
  2. Opening a Position and Notice: Within five business days of establishing a position, an employer shall offer its laid-off employees in writing (by personal service or by mail to last known address and by email and text message, if possible), all job positions that become available for which the employee is qualified. The employer must provide at least five business days’ notice to the employee to accept or reject the position.
  3. Multiple Employees for One Position: If more than one laid-off employee qualifies for an open position, the position should be simultaneously and conditionally offered to each qualified employee. The conditional offers should indicate that the employee with the longest length of service gets priority, if accepted.
  4. Written Notice When Laid-Off Employee Not Hired: An employer that does not recall a laid-off employee on the grounds of lack of qualifications and instead hires a non-laid-off employee, written notice must be provided within 30 days including the length of service of the employee hired and all reasons for the decision.
  5. Recordkeeping: Employers must retain records for at least three years of the employees (i) full legal name; (ii) job classification at time of lay-off; (iii) date of hire; (iv) last known residential address, email, and telephone number; and (v) copies of written notices and communications regarding the lay-off and offers of employment.

How is the Right-to-Recall Law Enforced?

Non-compliance with Labor Code Section 2810.8 will give the former employee a right to file a complaint with the Division of Labor Standards Enforcement. A private right of action to file a lawsuit in court is not permitted. An aggrieved employee can recover front pay, back pay, lost benefits, and/or reinstatement if the employee prevails.

Depending on how many employees are covered within the business, civil monetary penalties ($100) and liquidated damages ($500) per employee for each day the law is violated until the violation is cured can be enormous.

However, there may still be a right to file a lawsuit for certain aggrieved employees. Check your local ordinances as cities or counties in San Diego, Carlsbad, Los Angeles, Pasadena, Oakland, Santa Clara, and San Francisco have also passed similar local laws. These local versions of the Right-to-Recall may permit an aggrieved employee to file a lawsuit in court.

For covered employers, carefully read and follow the requirements of Labor Code Section 2810.8. Click the following link for the full text of Labor Code Section 2810.8: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2810.8.&nodeTreePath=4.2.3&lawCode=LAB

If you have any questions, please contact Mandy Hexom at [email protected] or 619-515-5403.

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