262 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com terminated because of a nondisciplinary reason related to the pandemic (e.g., because of a slowdown in business).514 To be qualified for rehire, the worker must have (1) worked for the employer for at least six months in the twelve months prior to January 1, 2020 for at least two hours a week, and (2) have held the same or similar position when they were laid off.515 The obligation to offer to rehire qualified workers can survive business ownership changes, restructuring, and relocation, if the business conducts the same or similar operations using substantially the same assets.516 Although the law does not give allegedly aggrieved workers the right to sue in court, it authorizes the Labor Commissioner to investigate and seek substantial damages. For example, in March 2022, the Labor Commissioner cited a Southern California resort for $3.3 million in damages and penalties for not rehiring hotel workers in compliance with California’s right-of-recall law.517 The law’s provisions can be waived in a collective bargaining agreement, though the waiver must be express and in clear terms. The law will expire on December 31, 2024.518 Similar, but not identical, right to recall laws have been passed by several Calfiornia cities, including San Francisco,519 Oakland,520 Santa Clara,521 Monterey County,522 Los Angeles,523 San Diego,524 Carlsbad,525 Long Beach,526 Santa Monica,527 Glendale,528 and Pasadena.529 The statewide law does not preempt these local laws, so both the state and local laws must be consulted for employers with operations in these cities. 7.23.3 Employee staffing Employers throughout America generally have the discretion to staff their workforces in accordance with their own business needs, without regard for current workforce preferences. In California it’s different, or at least it is in San Francisco, San Jose, and Emeryville, Los Angeles and Berkeley. San Francisco – Formula Retailers. Before hiring new employees or using contractors or a temporary services or staffing agency to perform work in a Formula Retail Establishment, Formula Retail employers,530 before hiring new employees or using contractors or a temporary services or staffing agency to perform work in a Formula Retail Establishment, must first offer the additional work to existing part-time employees if: (1) the part-time employee is qualified to do the additional work, as reasonably determined by the employer, and (2) the additional work is similar to work the employee has performed for the employer.531 Further, Formula Retail employers need offer only the number of hours needed for the part-time employee to reach 35 hours of work in a week. The Formula Retail employer must deliver a written offer of the additional hours, or post the offer in a conspicuous location in the workplace where employee notices customarily appear. The part-time employees must be provided 72 hours to accept the additional hours, after which the employer may hire new employees or use contractors to work the additional hours. If a Formula Retail Establishment changes ownership, then the new Formula Retail employer, or “successor employer,” must retain for 90 days those employees of the previous Formula Retail employer—the incumbent employer—who worked for at least six months prior to the change of ownership (other than supervisory, managerial, or confidential employees) for 90 days. The successor employer must retain each eligible employee under the same terms of employment with respect to job classification, compensation, and number of work hours that governed the employee and the incumbent employer. During the 90-day retention period, an eligible employee is immune from discharge without cause. Incumbent employers must provide and the successor employer must maintain a “retention list” that includes the employee’s name, contact information, date of hire, rate of pay, average number of weekly hours during the six
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