San Francisco Enacts “Right to Rehire” Ordinance
by Vita, on July 30, 2020
As of July 3, 2020, San Francisco employers with 100 or more employees must offer a “right of reemployment” to certain employees who were or are laid off because of COVID-19. Employees with a right to rehire must be offered employment before any offers are made to new applicants. The ordinance will remain in effect for 60 days unless extended.
Nearly 39,000 employees in San Francisco have been affected by the pandemic, according to WARN Act notices filed with state and local officials. There have been 352 WARN notices filed with the city since February. By contrast, during the same period last year, only 13 WARN notices were filed, affecting around 700 workers.
Employers with 100 or more employees are subject.
The ordinance covers employers that own or operate a business in the City and County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. It applies to both for-profit and non-profit employers. Federal, state, local or other public agencies, and employers that provide healthcare qualifying services are excluded.
Applies to lay-offs of ten or more employees within a 30-day period.
A covered lay-off is a separation from employment of 10 or more covered employees within any 30-day period commencing on or after February 25, 2020. Lay-offs must be caused by an employer’s lack of funds or work for employees resulting from the COVID-19 pandemic. It includes lay-offs caused by operational shutdowns due to the State and County Shelter-In-Place Orders. It applies when employers are seeking to hire workers for the same or substantially similar positions previously held by other workers who were recently laid off.
Employees must have been employed in SF for at least 90 days.
Eligible Workers are those who were employed for at least 90 days in the calendar year preceding a covered lay-off. If Eligible Workers were separated from their employment due to a covered lay-off, they are protected by the ordinance. While not explicitly articulated in the ordinance, it is presumed that covered employees are those who work and/or reside in San Francisco (city or county).
Worker Notice Requirements
Notice must be provided by August 2nd for any prior lay-offs and concurrently with or prior to any future lay-off.
For future lay-offs, Eligible Workers must receive a written notice of their covered lay-off in a language they can understand, at the time of or before the lay-off occurs. For prior lay-offs within the ordinance window, Eligible Workers must receive their written notice by August 2, 2020. In each case, the notice must include:
- Date of lay-off notice and lay-off effective date
- Summary of the right to reemployment under the ordinance, and
- The telephone number for the San Francisco Office of Economic and Workforce Development (OEWD) worker information hotline
Employers must also notify the OEWD, in writing, of all covered lay-offs within 30 days of the date the lay-off is initiated, with some exceptions. This notice must include:
- Total number of employees located in San Francisco impacted by the lay-off
- Job classification at the time of separation for each covered employee
- Original hire date for each covered employee, and
- Date of employment separation for each covered employee
Employer Notice to OEWD
Employers must provide notice of lay-offs and offers of reemployment to the OEWD.
Employers must provide written notice of a lay-off to the OEWD within 30 days of the date it initiates the lay-off. If an employer does not anticipate or foresee that there will be a lay-off, it must provide written notice within seven days of the lay-off date of the 10th affected Eligible Worker in 30 days. Employers must provide the following information to the OEWD:
- Total number of employees located in San Francisco affected by the Lay-off
- Job classifications for each affected Eligible Worker
- Original hire date for each affected Eligible Worker; and
- Date of separation for each affected Eligible Worker
Employers must also notify the OWED in writing of all offers of reemployment, including all acceptances and rejections.
Exceptions to Reemployment
Employers may withhold offers of reemployment for three reasons: misconduct, severance agreement, and those already rehired.
Covered employers are not required to offer reemployment under the following circumstances:
- Misconduct: If, based on information learned subsequent to the lay-off, the employer learns that the employee engaged in acts of dishonesty, violation of law, violation of policy or employer rules, or other misconduct during their employment.
- Severance agreement: If the company terminated the covered employee between February 25, 2020, and July 3, 2020, as part of a covered lay-off, and the company and covered employee executed a severance agreement as a result of the covered employee’s termination due to the lay-off, pursuant to which, in exchange for adequate consideration, the employee agreed to a general release of claims.
- Rehiring: If the company terminated the Eligible Worker between February 25, 2020, and July 3, 2020, as part of a lay-off, and prior to July 3, 2020, the company hired a person into the employee’s former position or substantially similar position.
This Ordinance does not apply to Eligible Workers covered by a bona fide collective bargaining agreement to the extent that the requirements of this Ordinance are expressly waived in the collective bargaining agreement in clear and unambiguous terms.
Offers of Reemployment
Same position or substantially similar positions must be offered in order of seniority.
Employers seeking to fill the same, or substantially similar, positions previously held by Eligible Workers must hire in accordance with the following rules:
Employers seeking to hire for positions formerly held by an Eligible Worker must first offer the position back to the Eligible Worker before offering the position to others.
Substantially Similar Position
Employers seeking to hire for any positions that are “substantially similar” to worker’s former position must first offer that position to the Eligible Worker before offering the position to others. “Substantially similar” position is defined as:
- A position with comparable job duties, pay, benefits, and working conditions to the Eligible Worker’s former position;
- Any position the Eligible Worker held in the 12 months before the lay-off; or
- Any position for which the Eligible Worker would be qualified, including a position that may require training, if the Employer would otherwise make the training available to a new employee upon hire.
Order of Seniority
If there is more than one Eligible Worker with the same classification, employers must make offers of reemployment based on seniority, which is determined by the Eligible Workers’ earliest date of hire.
Retention of Records
Employers must retain specified records for two years.
Employers that conduct a lay-off must retain the following records for at least two years regarding each affected Eligible Worker:
- Full legal name
- Job classification at the time of separation
- Date of hire
- Last known address of residence
- Last known email address
- Last known telephone number
- Copy of the written notice regarding the lay-off
The two-year retention period is measured from the date the written notice was provided to the Eligible Worker.
There is a prohibition against discrimination in rehiring.
Employers are prohibited from discriminating against or taking adverse employment action against an Eligible Worker who is experiencing a family care hardship, including the need to care for a child whose school or place of care is closed. Employers must allow requests for reasonable accommodation for the hardships. Reasonable accommodations may include modifying a work schedule, modifying the number of hours worked, or to the extent feasible, permitting telework.
Penalties for Non-Compliance
Workers may sue a covered employer for value lost in the event of a violation of the ordinance.
Eligible Workers may bring a lawsuit in the Superior Court of the State of California against the employer for violating this Ordinance and may be awarded the following relief:
- Hiring and reinstatement rights
- Back pay
- Front pay
- Value of the benefits the employee would have received
- Reasonable attorneys’ fees and costs
The ordinance also does not limit an Eligible Worker’s other rights and remedies, including the right to bring claims for wrongful termination and unlawful discrimination.
The full text of the ordinance can be found here.