©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 351 obtaining the capital or business. This third exemption applies only to relocations and terminations, not mass layoffs. To claim this exemption, the employer must give the EDD documentation under penalty of perjury. The Covid-19 pandemic temporarily altered the exemption landscape. In March 2020, Governor Gavin Newsom issued an Executive Order allowing California employers to avail themselves of the “unforeseeable business circumstances” exception to the notice requirement that previously was available only under the federal WARN act6. The Executive Ordersuspended Cal-WARN’s 60-day notice requirement where the triggering termination, relocation, or layoff resulted from Covid-related business circumstances that were not reasonably foreseeable at the time notice would have been required. The Governor’s Executive Order was in effect March 4, 2020 and ended on July 1, 2021. This exercise of executive power suggests future governors may employ similar measures in cases of emergency that cause significant layoffs statewide. 13.1.3 Remedies for violation A non-complying employer is liable to each affected employee for back pay and the value of benefits lost, for a period of up to 60 days. This liability is subject to offsets for payments made by the employer as separation wages or continued benefits during the period. The employer is also subject to a civil penalty of not more than $500 for each day of the violation, but this penalty is not imposed if the employer pays the employees what is due within three weeks of the triggering event. The penalty may also be reduced if the employer can prove that it acted in good faith. Affected employees, local governments, and employee representatives may sue employers under CalWARN, and prevailing plaintiffs may recover attorney fees. 13.1.4 Rules for call centers Amendments to Cal-WARN effective in 2023 prohibit a call center employer from ordering a relocation of its call center, or one or more facilities or operating units within a call center comprising at least 30 percent of the call center’s or operating unit’s total volume when measured against the average call volume for the previous 12 months, outside the United States without providing at least 60 days prior notice.7 13.1.5 Comparing Cal-WARN with federal law Cal-WARN differs in some material respects from the federal WARN Act, creating compliance traps for employers that plan reductions in force while having only federal law in mind. Issue Federal Law California Law Employer responsible for notice The employer The company and any parent corporation ordering the reduction in force. Definition of employer Employer of 100 full-time employees or full- and parttime employees who work 40 or more hours weekly Employer of 75 full- or part-time employees at establishment (any industrial or commercial facility) during the 12 months preceding the date on which notice is required.
RkJQdWJsaXNoZXIy OTkwMTQ4