Senate Bill 93, now Labor Code section 2810.8 after enactment, establishes mandatory rehiring preferences for hospitality employees laid off during the pandemic. Under this new law, employers are required to first offer new positions to laid-off employees before seeking other candidates. Employers must make the offer within five (5) business days of establishing a position. The laid-off employee has five (5) business days from receipt of the offer to accept.
Section 2810.8 expires on December 31, 2024.
Impacted Employers: Section 2810.8 applies to employers who operate airport hospitality centers, event centers, hotels, and private clubs, or who provide building services, as defined under Section 2810.8:
- Airport Hospitality Centers – a business that prepares, delivers, inspects, or provides any other service in connection with the preparation of food or beverage for aircraft crew or passengers at an airport, or that provides food and beverage, retail, or other consumer goods or services to the public at an airport.
- Building Services – janitorial, building maintenance, or security services.
- Event Centers – a publicly or privately owned structure of more than 50,000 square feet or 1,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term ‘event center’ also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
- Hotels – a lodging facility with 50 or more guest rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotels” also include any contracted, leased, or sublet premises connected to or operated in conjunction with the hotel, or providing services at the hotel’s building. The number of guest rooms, or suites of rooms, is calculated based on the room count at the opening of the hotel or on December 31, 2019, whichever is greater.
- Private Clubs –a private, membership-based business or nonprofit organization that operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members. The number of guest rooms or suites of rooms is calculated based on the room count at the opening of the private club or on December 31, 2019, whichever is greater.
Impacted Employees: A laid-off employee qualifies for rehire preference if they were employed for at least six (6) months in 2019 and have been laid-off due to the COVID-19 pandemic. This includes employees who were terminated because of a public health directive, government shutdown order, lack of business, reduction in work force, or some other economic, non-disciplinary reason.
Order of Preference: When multiple laid-off employees qualify for a new position, offers must be made to the laid-off employees in order of their length of service. For this requirement, length of service means all periods the employee has worked for the employer including any leaves of absence and vacation. An employer may distribute multiple offers simultaneously, but must inform the employees that final hiring will be subject to the order of preference.
Making the Offer: The offer must be made to the employee in writing and delivered by hand or to the employee’s last known address. The offer should also be made via text message and email, if that contact information is known.
Lack of Qualifications: If an employer hires someone other than a laid-off employee on the grounds that a laid-off employee was not qualified for the new position, the employer must provide the laid-off employee with a written notice within 30 days of the hiring. The notice must include the length of service with the employer of the person(s) hired in lieu of the laid-off employee, along with all reasons for the decision.
Recordkeeping: Employers must keep a copy of all offers and other notices required by Section 2810.8 for at least three years.
Consequences of Failure to Comply: Employers, including individuals acting on behalf of an employer, who violate this new law are subject to a $100 civil penalty for each employee whose rights are violated and liquidated damages of $500 per day per employee. In addition, the laid-off employee may be awarded hiring or reinstatement rights, front pay, back pay, and/or the value of the employee benefits plan.
For the full text of SB 93, click here.
Please contact a member of Raines Feldman’s Employment Law Department if you are subject to this new requirement.