In meaningful numbers, employers across the U.S. who are rebuilding their workforces are being sued by employees not recalled from COVID furloughs and applicants not hired. Last week, I posted an Alert describing the risks to employers nationally of such litigation and giving recommendations on hiring up defensively. California employers, in particular, may be at the greatest risk of such litigation and their planning accordingly is vital.
Local Recall Obligations
First, several California cities have enacted ordinances giving union-style rights to non-union employees who were furloughed or laid off due to the pandemic, that is, rights to be recalled with legally-mandated preference over other candidates. Los Angeles, Long Beach, San Francisco and Oakland, for example, have enacted such measures. Other jurisdictions may follow. The ordinances place involved burdens on employers. They are also traps for companies who are not thoroughly familiar with the requirements, including companies based outside California but with operations in such cities. Our firm’s Alert on the San Francisco ordinance, for example, may be found here.
AB 3216 on Governor Newsom’s Desk
Such obligations may become the law statewide. Late in the night on September 1, the California Legislature passed a bill that would impose such recall requirements on employers throughout the state, obligations, in fact, that will be more intricate and burdensome than those cities have in place now. If signed by Governor Newsom, Assembly Bill 3216 will enact Labor Code section 2810.8, a five-page long system of recall and other rights for employees of certain hotels, private clubs, event centers, airport operations and companies providing janitorial, maintenance or security services to office, retail or other commercial buildings.
The Governor has until September 30 to sign or veto AB 3216.
Unparalleled Legal Ammo for California Employees and Applicants
California employees not included in recalls from furloughs and applicants who are not hired have at their disposal what is almost certainly the nation’s most potent arsenal of grounds for claims that they were victims of discrimination or retaliation, namely, the California Fair Employment and Housing Act and the California Labor Code. California’s legal terrain makes it necessary for employers with operations here to plan their staffing up with at least the same care they invest in designing defensible reductions in force.
Hire Up Defensively
Rebuilding workforces from a thoughtful, defensive perspective is important everywhere, but perhaps most critical in California. Please take into account the risks and preventive considerations discussed in my Alert.