Frequently Asked Questions on Recall Rights:
2021 COVID-19 Supplemental Paid Sick Leave Expired on September 30, 2021
From January 1, 2021 to September 30, 2021, California required employers with 26 or more employees to provide their workers up to 80 hours of supplemental paid sick leave (SPSL) for COVID-19 related reasons. Employees taking 2021 SPSL as of September 30, 2021 may continue to take the leave they are currently on even if the entitlement extends past September 30, 2021. For more information, visit the Labor Commissioner’s webpage on the expiration of 2021 COVID-19 SPSL.
- What industries are affected by the right to recall to work provided under LC 2810.8?
- What types of hospitality businesses must comply with the recall provisions?
- What businesses are event centers that must comply with the recall rights law?
- What airport hospitality providers must comply with the recall rights law?
- What airport service providers must comply with the recall rights law?
- What entities are covered under “building services?”
- Do the recall provisions apply only to large employers?
- Which employees have recall rights?
- How does the recall of laid-off employees happen?
- How is seniority measured for determining recall rights?
- How will an employee learn of a job offer if his/her contact information has changed?
- How should an employee notify an employer that he/she accepts a recall offer?
- What are the California state holidays?
- If an employee turns down a job, does the employer have to offer the employee subsequent jobs that are to be filled?
- Does an employer have to offer a job to an employee who is not qualified for the position?
- What records must be maintained by the employer?
- What can be done if recall rights are violated?
- Does Labor Code section 2810.8 bar retaliation for asserting rights under Labor Code section 2810.8?
Yes. An employer may not refuse to hire, reduce compensation or take any adverse action against an employee for the exercise of rights under Labor Code section 2810.8. Additionally, an employer may not deny recall rights to an employee for exercising other rights provided by the Labor Code. An employee who asserts that he/she has been retaliated against should file a retaliation claim with the Labor Commissioner. If retaliation is proven, an employee is entitled to the larger of section 2810.8 liquidated damages or back pay, front pay, the value of benefits and can be ordered reinstated. An employee who suffers retaliation may also be awarded statutory penalties of $10,000 pursuant to Labor Code section 98.6(b)(3). An individual’s right to sue for wrongful termination is not limited by Labor Code section 2810.8.
- What entities can be held responsible for violations of Labor Code section 2810.8?
Liability for recall violations extends to any employer of a covered enterprise and includes a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, owns or operates an enterprise and employs or exercises control over the wages, hours, or working conditions of any employee. The definition of “employer” includes a “successor employer” where ownership has changed after a lay-off but the enterprise conducts the same or similar operations as before the COVID pandemic; where the form of the employer has changed during or after the pandemic; where the employer’s assets were acquired by another entity conducting the same or similar operations using substantially the same assets; or when an employer relocates operations.
- Does Labor Code section 2810.8 affect non-state recall ordinances?
Labor Code section 2810.8 provides recall rights for employees in the hospitality industry and in building services who were separated from employment as a result of the COVID pandemic.
Hotels and private clubs with 50 or more guest rooms, public and private event centers, airport hospitality operations and service providers.
An event center is a structure 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 and is more than 50,000 square feet in size or has more than 1,000 seats. Recall rights also extend to employees at contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
Airport hospitality provider includes 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. Airport hospitality includes passenger services such as rental car businesses appurtenant to an airport. An airport hospitality operation does not include an air carrier certificated by the Federal Aviation Administration.
Airport service providers that must comply include a business that performs, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail, including, but not limited to, the loading and unloading of property on aircraft, providing assistance to passengers in boarding aircraft, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal. FAA certificated air carriers are not subject to the requirements of Labor Code 2810.8.
Janitorial, building maintenance, and security services for commercial buildings are businesses that must comply with Labor Code section 2810.8.
No. Any employer of a covered enterprise must comply with the recall provisions regardless of the number of its employees.
Effective April 16, 2021, Labor Code section 2810.8 provides recall rights for qualified employees of covered employers (see above) who were employed for six months or longer during the twelve months before January 1, 2020, worked at least two hours per week, and most recently separated from employment because of any non-disciplinary reason related to the COVID pandemic, including lack of business, a government shut-down order, or public health directive. Recall rights end on December 31, 2024.
Within five days of a job opening, an employer must offer the available position(s) to laid-off employees who held the same or similar position before the lay-off. An employee is allowed five business days to accept an offer, if the employee wants to be rehired. An employer may make a single offer to the employee with the most seniority or the employer may make multiple contingent offers to a group of employees all of whom are qualified for a position. If multiple laid-off employees accept the same offer, the job(s) must be given to the employee(s) with greatest seniority (based on hire date). If no laid-off employee(s) accepts the job offer(s), the employer may hire anyone else including a new employee to fill the position.
Seniority is based on total length of service with the employer, not on the basis of job seniority. “Length of service” means the total of all periods of time during which an employee has been in active service with the employer, based on the employee’s date of hire, including periods of time when the employee was on leave or on vacation.How must an employer alert an employee of a job offer?
Labor Code section 2810.8 requires an employer to notify laid-off workers in person or by U.S. Mail, and send a notification by electronic mail and text, if the employer has the employee’s email address and mobile phone no.
Employers will utilize the residential address, email address, and cell phone numbers on file to notify employees of recall offers. Laid-off employees should update employers with all current contact information to facilitate the employer contacting them and to avoid missing a recall opportunity.
The employee should respond to an offer as soon as possible. An acceptance must be delivered to the employer within 5 business days. (Saturdays, Sundays, and CA state holidays are not counted.) Preferably the employee should keep a written copy of his/her acceptance. The best way to keep an accurate record is to respond to the employer’s email and retain a copy of the return email.
Currently the holidays observed by the State of California for 2021 are:
Friday, January 1 New Year's Day
Monday, January 18 Martin Luther King, Jr. Day
Monday, February 15 Presidents' Day
Wednesday, March 31 César Chávez Day
Monday, May 31 Memorial Day
Monday, July 5 July 4th (Observed Monday)
Monday, September 6 Labor Day
Thursday, November 11 Veterans Day
Thursday, November 25 and
Friday, November 26 Thanksgiving Holiday
Saturday, December 25 Christmas Day
Yes. As each new position(s) becomes available, the employer must notify and offer the job(s) to all qualified laid-off employees who worked at the same or a similar position, including laid-off employees who have previously declined an offer to be re-hired for a prior position.
No. An employer does not have to recall a non-qualified employee, but the employer must provide the laid-off employee a written notice within 30 days of the date that the employer fills the job with a less senior employee which includes the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision. An employee will generally be deemed qualified for a position if the employee held the same or similar position at the enterprise at the time of the employee’s most recent layoff with the employer. If an employee is not offered recall because of qualifications and it is later determined that he/she was in fact qualified, the employee may be awarded liquidated damages from the time the job was filled by a less senior person.
An employer must keep records for at least three years from the date of a lay-off notice: including the laid-off employee’s full name, job classification, date of hire, last known address of residence, email address, telephone number, a copy of the lay-off notice, and copies of all communication between employer and employee concerning employment offers under Labor Code section 2810.8
A laid-off employee who is not offered an available position for which the employee is qualified in accordance with their seniority may report the violation to the State Labor Commissioner for investigation by the Bureau of Field Enforcement. If the Labor Commissioner determines that an employee’s recall rights have been violated the Labor Commissioner may issue a civil penalty citation or file a lawsuit. Civil penalties of $100 per employee may be imposed on the employer for each employee whose rights are violated and the employee can be awarded compensatory liquidated damages of $500 for each day until the violation is cured. Interest will be awarded on all amounts due in accordance with California Civil Code section 3289(b). A court may issue an injunction to enforce recall rights.
Cities and counties may enact greater protections through local ordinances. California law establishes a state-wide minimum labor standard, but employers must comply with applicable local laws as well as state laws. The Labor Commissioner is the sole enforcement authority for Labor Code section 2810.8 state-wide, while local governments may enforce the county or municipal laws providing worker recall rights. An individual employee does not have a private right of action to enforce Labor Code section 2810.8, although an individual employee may have a right to file a civil lawsuit under a local ordinance.