San Francisco Passes Emergency Reemployment Ordinance

July 1, 2020Alerts

San Francisco now requires employers with 100 or more employees to offer a right to reemployment to previous employees who were laid off due to COVID-19 pandemic prior to making offers of employment to new applicants.

Passed by the San Francisco Board of Supervisors on June 23, 2020, the Emergency Ordinance – Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic takes effect immediately upon being signed by Mayor London Breed and will remain in effect for 60 days unless extended by the Board of Supervisors.

Here are the ordinance’s key provisions:

Covered Employers

Covered employers are for-profit and nonprofit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. Covered employers, however, do not include any federal, state, local or other public agency nor an employer that provided or provides services that qualified or qualify as healthc are operations, including hospitals, clinics, COVID-19 testing locations, dentists, pharmacies, blood banks and blood drives, pharmaceutical and biotechnology companies, other health care facilities, healthcare suppliers, home healthcare service providers, mental health providers or any related and/or ancillary health care services, as well as veterinary care and all providers of health care services for animals.

Covered Layoff

A layoff is defined in the ordinance as a separation of 10 or more employees during any 30-day period, commencing on or after February 25, 2020, by an employer, including the closure or cessation of an employer’s business operations. The layoff must have been caused by the employer’s lack of funds or lack of available work for its employees due to the states of emergency declared by Gov. Gavin Newsom and Mayor Breed in response to the COVID-19 pandemic or any stay at home/shelter in place orders.

Eligible Employees

Employees are covered by the ordinance if they were employed for at least 90 days of the calendar year preceding a covered layoff.

Employers’ Notice Requirements

  • Written Notice of Layoff and Right to Reemployment for Existing/Former Employees
    Covered employers must provide all eligible employees with written notice of COVID-19-related layoff in a language they can understand at or before the time when the layoff becomes effective. If a covered layoff has already occurred, covered employers shall provide such notice to eligible employees within 30 days of the effective date of the ordinance. The written notice shall include:
    • a notice of the layoff and the layoff’s effective date;
    • a summary of the right to reemployment created by this emergency ordinance; and
    • a hotline telephone number operated by the Office of Economic and Workforce Development (OEWD), which eligible employees may call to receive information regarding the right to reemployment created by the ordinance, as well as navigation services and other resources related to unemployment.
  • Notice to the City Regarding Layoff
    An employer shall provide written notice to OEWD of a layoff within 30 days of the date it initiates a layoff. If an employer did not foresee that separation of employees would result in a layoff, it should provide written notice within 7 days of the layoff date of the 10th affected employee in a 30-day period as a result of Public Health Emergency and any Stay at Home/Shelter In Place orders. In that case, the employer must provide the following information to the OEWD:
    • total number of employees located in San Francisco affected by the layoff;
    • job classifications for each affected eligible employee;
    • original hire date for each affected eligible employee; and
    • date of separation for each affected eligible employee.

Offer of Reemployment

Covered employers shall engage in good faith efforts to notify eligible employees of reemployment offers.

  • Methods of Offer of Reemployment
    If an employer has a record of an eligible employee’s last known telephone number, the employer shall attempt to notify the eligible employee by phone at that number of an offer of reemployment. The employer then shall notify an eligible employee that it wishes to extend an offer of reemployment and seeks his or her consent to transmit an offer letter via email. The employer may send the written offer via email only if the eligible employee consents to such email delivery. If the eligible employee consents to receiving the offer by email, the employer must email the written offer the next business day by 5:00 p.m. If the eligible employee does not consent to receiving the offer by email within the prescribed timeframe, or if the employer does not have a telephone number or email, the employer shall transmit a written offer of reemployment to the eligible employee’s last known address of residence by certified mail or courier delivery. The offer must remain open for at least 2 business days following delivery by certified mail or courier.
  • Offer of Reemployment Following Layoff to the Same Position
    If an employer seeks to hire a person to the same position formerly held by an eligible employee, it shall first offer the eligible employee an opportunity for reemployment to their former position before offering the position to another applicant.
  • Offer of Reemployment Following Layoff to Substantially Similar Position
    If an employer seeks to hire a person to the position that is substantially similar to an eligible employee’s former position, it shall first offer the eligible employee an opportunity for reemployment to the substantially similar position before offering the position to another applicant. For purposes of this ordinance, a “substantially similar position” includes:
    • A position with comparable job duties, pay, benefits, and working conditions to the eligible employee’s position at the time of layoff;
    • Any position in which the eligible employee worked for the employer in the 12 months preceding the layoff; and
    • Any position for which the eligible employee would be qualified, including a position that requires training of a type that the employer would otherwise make available to an employee newly hired to the particular position.
  • Offers of Reemployment Must be Made in Order of Seniority
    If an employer intends to offer reemployment to an eligible worker and there are more than one eligible employees with the same job classification, the employer shall make offers of reemployment to such eligible employee based on the eligible employees’ seniority (earliest date of hire) with the employer.
  • Exceptions
    An employer may withhold an offer of reemployment if:
    • based on information learned subsequent to the layoff of an eligible employee, the employer learns that the eligible employee engaged in any act of dishonesty, violation of law, violation of policy or rule of the employer or other misconduct during their employment with the employer;
    • a severance agreement was executed prior to the enactment of the ordinance; or
    • if the employer already rehired someone to the position prior to the enactment of the ordinance.

Eligible Employees’ Acceptance of the Offer of Reemployment

Eligible employees must accept the offer of reemployment by providing a response to the employer in writing by reasonable means identified by the employer. This includes returning a signed version of an offer letter by any reasonable method of delivery or, if authorized by an employer, by applying an electronic signature and transmitting acceptance of the offer to an employer by email or other reasonable electronic methods. If the eligible employee notifies the employer by other means, the employer must allow 2 business days from that date to respond in the written reasonable means identified by the employer.

If the eligible employee fails to respond to the offer of reemployment within the specified timeframes, he or she shall be deemed to have rejected the offer of reemployment. The employer is then permitted to offer the position to the next most senior eligible employee, or, if there are no other eligible employees, then to an alternative job candidate.

Retention of Records

Employers who initiated a layoff after February 25, 2020, must retain the following records for at least two years (measured from the date the written layoff notice) regarding each affected employee:

  • 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; and
  • Copy of the written layoff notice.

Non-Discrimination and Duty to Accommodate Family Care Hardship

The ordinance prohibits employers from discriminating against or taking adverse employment action against eligible employees with family care hardships. Eligible employees with family care hardships include (1) those who are unable to work due to either a need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable due to COVID-19; and (2) those using the San Francisco Paid Sick Leave ordinance to provide care for someone other than themselves.

The ordinance also requires employers to offer reasonable accommodations upon request. Reasonable accommodations may include, but are not limited to, modifying the hours to be worked, permitting telework, and modifying the rehire’s schedule.

Potential Penalties to Employers for Non-Compliance

Eligible employees may bring a lawsuit in the Superior Court of the State of California against an employer for violating this emergency ordinance, and may be awarded the following relief:

  • Hiring and reinstatement rights;
  • Back pay for each day of the violation;
  • Front pay for each day during which the violation will continue;
  • Value of the benefits the eligible employee would have received; and
  • Reasonable attorneys’ fees and costs.

San Francisco’s ordinance is similar to ordinances enacted in Los Angeles and Long Beach.

Fox Rothschild will continue to provide updates regarding recent legislation and events surrounding COVID-19 and its impact on businesses. For additional information, visit our Coronavirus Resources Page and subscribe for automated updates, or contact Hyunki “John” Jung at [email protected] or any of the Labor and Employment attorneys in our San Francisco office.