Publication

Enacted by Governor Gavin Newsom on April 16, 2021, California Senate Bill 93 (“SB 93”) creates California Labor Code section 2810.8, which requires employers specifically in the hospitality and mass services industries to offer to re-hire qualified former employees laid off due to COVID-19.  If the employer hires someone else other than the laid off employee on the grounds of lack of qualification, the employer must provide the laid off employee with written notice within 30 days. SB 93 also requires employers to keep related records for three years, including records of communications regarding the offers.  

Penalties under SB 93 are enforced by the Division of Labor Standards Enforcement (“DLSE”).

Covered Employers

SB 93 only applies to employers who operate an “enterprise,” which includes:

1. a hotel [with 50 or more guest rooms];
2. private club [either a membership-based business or nonprofit organization that operates a building that includes at least 50 guest rooms];
3. event center [public or privately owned with more than 50,000 square feet or 1,000 seats, such as concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities];
4. airport hospitality operation [that provide services in connection with the preparation of food or beverage[s] for aircraft crew or passengers at an airport. Airport hospitality operations also includes businesses that provide food and beverage[s], retail, or other consumer goods or services to the public at an airport. Airport hospitality operation does not include an air carrier certificated by the Federal Aviation Administration ("FAA")];
5. airport service provider [directly related to the air transportation of persons, property, or mail. The term includes businesses related to security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal. Air carriers certified by the FAA are not included in the definition of airport service provider]; and
6. building service to office, retail, or other commercial buildings [janitorial, building maintenance or security services].

Covered Employees

Laid-off employees include:

• any employee who was employed by the employer for at least 6 months in the time span of January 1, 2019 to January 1, 2020; and
• an employee separated from the job 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 related to the COVID-19 pandemic].

Re-hiring Laid-off Employees

If an employer covered by SB 93 establishes a position the laid-off employee is qualified for, the employer must offer the position to its laid-off employees within five business days in writing. The laid-off employee has five business days from the date of receipt within which to accept the offer.

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. If more than one employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the longer length of service.

Employees Not Qualified

The employer must provide written notice to the employee it has chosen not to hire on the grounds of lack of qualification. The employer must include a list of all employees hired for the position, with their length of service with the employer, and the employer’s explanation as to why the employer did not rehire the employee.

Maintaining Records

The employer must keep records for each laid-off employee for three years, including records of communications regarding the offers. The records must include the following information:

• employee’s full legal name;
• employee’s job classification at the time of separation from employment;
• employee’s date of hire;
• employee’s last known address of residence;
• employee’s last known email address;
• 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.

Penalties Under SB 93

An employee may file a complaint with the DLSE. The DLSE may award the complainant the following: hiring and reinstatement rights; front or back pay; value of the benefits the complainant would have received under the employer’s benefit plan; and interest on all amounts due and unpaid. The DSLE may also impose the following penalties: $100 for each individual whose rights the employer violated; liquidated damages of $500 per day for each individual whose rights the employer violated until such time as the violation is cured.