©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 363 discrimination or any other conduct that you have reason to believe is unlawful.”41. Information about unlawful acts in the workplace is broadly defined to include information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.42 These restrictions could complicate once-common agreements contemplating one release upon signing, a shortterm continuation of employment, and then a second release covering all claims through the date of separation. SB 331 also added provisions to Government Code section 12964.5 specifically applicable to separation agreements. In addition to adding the language above to non-disparagement/nondisclosure provisions, an employer offering an employee or former employee a separation agreement must notify the employee of the right to consult an attorney and provide the employee with “a reasonable time period of not less than five business days” to do so. Employees may sign earlier as long as the decision to sign earlier is knowing and voluntary, not induced through employer fraud or misrepresentation or inspired by a threat to withdraw or alter the offer (or by providing different terms to employees who sign earlier).43 These restrictions do not apply to provisions in a negotiated settlement agreement that releases a FEHA claim the employee has filed with a court, administrative agency, ADR forum, or through the employer’s internal complaint process.44 “Negotiated” means that the agreement is voluntary, deliberate, and informed, that the agreement provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.45 13.5 Worker Retention Laws Grocery store employers are subject to certain 90-day employee-retention requirements in the event of a change in control of a grocery store. In 2019, the City of Santa Monica enacted retention protections for workers in the hotel industry, except where those rights have been waived by a collective bargaining agreement.46 Following a qualifying change of control at a hotel, a successor employer must offer eligible hotel employees at least ninety days of employment, during which the employer cannot terminate the employee except for good cause based on individual performance or conduct.47 Exceptions to the requirement to hire employees from the incumbent hotel employer include (1) managerial, supervisory, or confidential employees, (2) if the successor hotel employer has reasonable and substantiated cause not to retain that eligible hotel worker based on individual performance or conduct while employed by the incumbent hotel employer, and (3) if the successor employer requires fewer hotel workers than the incumbent hotel employer.48 At the end of the hotel worker retention period, a successor hotel employer must provide a written performance evaluation to each retained hotel worker. If the hotel worker’s performance was satisfactory, the successor hotel employer must consider offering the hotel worker continued employment.49 Enforcement is available via civil action by an aggrieved person or the city, and remedies that include, among others, actual damages, an injunction, civil penalties, and attorney fees.50 For other worker retention and staffing requirements, see § 7.23. 13.6.1 Recall Rights In 2021, the legislature enacted SB 93, which addressed Covid 19-related layoffs and subsequent recall rights in the hospitality industry.51 The “employers” affected by the bill are those who own or operate an “enterprise,” which is defined as a hotel, private club, event center (e.g., concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers), airport hospitality operation, airport service provider, or the provider of building service (i.e., janitorial, building maintenance, or security services) to office, retail, or other commercial buildings.52 The law benefits laid-off employee whose most recent separation from active service was 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, nondisciplinary reason.53 Among other obligations, the statute decrees that within five business days of establishing a position, a covered employer must offer its laid-off
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