By Brittany Schaffer
The COVID-19 pandemic started in early 2020, and it has caused massive changes within a short period of time. One of the most rememberable effects of the COVID-19 pandemic was that businesses had to come to a complete halt, forcing them to lay off employees. California’s unemployment rates went up.
Now that the stay-at-home orders have lifted, people start to come out. Businesses are now reopening, looking to rehire their laid-off employees. Before the pandemic, employers had the option of recalling only a certain number of laid-off employees they would want to rehire based on employees’ job performance. That option had been changed after Governor Gavin Newsome signed into law – Senate Bill 93, which went into effect on April 16th, 2021.
The California Senate Bill No. 93 (SB 93)
According to SB 93, companies in specific industries, mainly the hospitality industry, have the obligation to provide job opportunities in written form to qualified employees being laid off due to COVID-19. If multiple employees respond to one opening, employers will have to grant the job based on seniority but not on performance. Employers will also have to keep specific documentation and records between the employer and laid-off employee for up to three years. SB 93 will expire on December 31st, 2024. Charles L. Thompson wrote in an article called the national law review, stating that the “California Division of Labor Standards Enforcement will enforce the new law and order reinstatement, front and back pay, and benefits and impose substantial penalties and liquidated damages”.
Employers and employees who are covered by SB 93
SB 93 applies to airport hospitality operators and service providers, hotels, and private clubs with 50 guest rooms or more. SB 93 will also include event centers with a thousand seats or more and, lastly, any places that have janitorial, building maintenance, and security services. SB 93 considers qualified employees as those who have worked with the company for six to 12 months before January 1st, 2020. Another qualification is that employees must have worked at least two hours a week and been laid off due to COVID-19 or other reasons related to COVID-19.
The challenges that SB 93 imposes on human resource management
No doubt, adjusting to the new rules will impose some challenges. SB 93 does pose some concerning challenges for human resource (HR) management, especially if the HR is unaware that their establishment is under the new law. Considerable hefty fines will follow if an employer does not enforce SB 93. An article on the SHRM website by Bruce J. Sarchet and Michael J. Lotito states that “civil penalties may require employers to pay $100 for each employee whose rights are violated plus an additional $500, per employee, for each day the employee’s rights were violated.”
HR managers may also need to take extra time to educate themselves and other departmental managers who need to know this law, as well as the anti-retaliation provisions towards employees under this law. Susan Kostal wrote an article for the SHRM website about the hurdles that employers faced from SB 93. Susan stated that “various attorneys believe that this process could slow down reopening for covered businesses as they have to wait on employees who qualify for a particular open position to respond to the hiring offer.”
While SB 93 could slow down reopening for employers, HR managers must recall laid-off employees based on their seniority, preventing them from bringing back their employees based on work performance. One can truly see that this law favors laid-off employees and is not in the employer’s best interest.
Solutions to the challenges
We can see that SB 93 does impose challenges on employers and their human resource management team. Regardless, there can be resolutions to the challenges. The first step to take is to find out if a business is covered under the law to begin taking proper protocols. Employers should educate their HR team right away and create informational training to educate other departmental managers about SB 93. Then, the HR department must implement organized plans on how they will retrieve laid-off employee files and identify an effective way/system to keep track of every record exchanged between the laid-off employee and the company until SB 93 is no longer in effect.
Open-ended questions for thoughts
Do you think SB 93 is fair towards the employers and the HR team as they have to rehire laid-off employees based on seniority but not job performance
Do you think if SB 93 makes HR’s job more challenging or easier? What are your thought?
19, R. R. | A. (2021, April 20). California approves ‘right to return’ bill for pandemic layoffs. Nation’s Restaurant News. Retrieved November 8, 2021, from https://www.nrn.com/restaurants-ready/california-approves-right-return-bill-pandemic-layoffs
Bill text. Bill Text – SB-93 Employment: rehiring and retention: displaced workers: COVID-19 pandemic. (n.d.). Retrieved November 8, 2021, from https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB93.
Bruce J. Sarchet and Michael J. Lotito © Littler Mendelson. (2021, July 7). California adopts statewide ‘right to recall’ law for certain industries. SHRM. Retrieved November 9, 2021, from https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-statewide-right-to-recall.aspx.
California’s SB 93: Governor signs covid-19 ‘rehiring and retention’ law. The National Law Review. (n.d.). Retrieved November 8, 2021, from https://www.natlawreview.com/article/california-s-sb-93-governor-signs-covid-19-rehiring-and-retention-law.
Kostal, S. (2021, July 30). Certain California employers face hurdles when recalling laid-off workers. SHRM. Retrieved November 8, 2021, from https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/certain-california-employers-face-hurdles-when-recalling-laid-off-workers.aspx.