Senate Bill 93: California’s New “Right to Recall” Law

On April 16, 2021, Governor Gavin Newsom signed Senate Bill 93, also known as the “Right to Recall” law. This new law, effective immediately upon signing, mandates certain employers to recall former workers that were laid off for COVID-related reasons when positions become available.

The new law does not apply to all California employers, however. S.B. 93 lists the specific categories as: hotels, private clubs, event centers, airport hospitality operations, and airport service providers, as well as janitorial, building maintenance, or security services to office, retail, or other commercial buildings.

What Are the Requirements of S.B. 93?

Employers covered under the new law must make new job positions available to “laid-off employees” within five business days of establishing the position and give those employees five additional business days to accept or decline the offer.

The law specifies that “laid-off employees” are eligible to be offered employment if they were employed by the employer for 6 months or more during the 12 months preceding January 1, 2020; and whose most recent separation from active employment was due to a “reason related to the COVID-19 pandemic.”

S.B. 93 includes the following reasons for layoff as being related to the COVID-19 pandemic:

• A public health directive,
• A government shutdown order,
• Lack of business,
• A reduction in force,
• Other economic or nondisciplinary reason due to the COVID-19 pandemic.

Under SB 93, the requirements for covered employers to make recall offers to laid-off employees are not removed due to changes in business structure, operations, or ownership. The law also applies in any of the following circumstances:

• The ownership of the employer changed after the separation from employment of a laid-off employee, but the enterprise is conducting the same or similar operations as before the COVID-19 state of emergency.
• The form of organization of the employer changed after the COVID-19 state of emergency.
• Substantially all of the assets of the employer were acquired by another entity that conducts the same or similar operations using substantially the same assets.
• The employer relocates the operations at which a laid-off employee was employed before the COVID-19 state of emergency to a different location.

Communicating Recall Offers to Laid-Off Employees

Employers must make the effort to communicate new job openings to laid-off employees using any and all contact information the employer possesses. Job offers must be put in writing and delivered to the laid-off employee either by hand or to the last known address as well as by email and text message, if employers have the necessary information to do so.

Recall Offers for Multiple Laid-Off Employees

In the event there are multiple laid-off employees eligible for recall, the employer can opt to make “simultaneous, conditional offers of employment to laid-off employees, with a final offer of employment conditioned on application of the preference system.” Under the preference system outlined in S.B. 93, the employer must give priority to the laid-off employee with the longest “length of service” based on the employee’s date of hire. “Length of service” includes all time of active service after the employee’s hire date, including any time on leave or vacation.

Declining to Recall

Employers may opt to decline to recall a laid-off employee only based on a lack of qualifications for the open position. The employer must provide the laid-off employee(s) a written notice within 30 days that specifies the reasons for the decision to decline recall and includes the length of service of the employee that was hired in lieu of the laid-off employee.

Record Keeping Obligations Under S.B. 93

For each laid-off employee, employers must maintain the following records for at least three years from the date of the written notice regarding the 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 address of residence;
• The employee’s last known email address;
• The employee’s last known telephone number; and
• A copy of the written notices regarding the layoff provided to the employee and all records of communications between the employer and the employee concerning offers of employment made to the employee pursuant to S.B. 93.

Penalties for Noncompliance

The law states that no criminal penalties will be imposed related to noncompliance but allows for the California Division of Labor Standards Enforcement (DLSE) to impose a civil penalty of $100 for each person whose rights were violated. It also gives the DLSE the discretion to impose liquidated damages of $500 per violation, per day until the employer cures the violation.

In addition to the penalties, an employee may file a complaint with the DLSE, and may be award any and/or all of the following, as appropriate:

• Hiring and reinstatement rights pursuant to S.B. 93.
• Front pay or back pay for each day during which the violation continues.
• The value of the benefits the laid-off employee would have received under the employer’s benefit plan.
• Interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil Code.