San Francisco Provides Right to Reemployment for Recently Laid-Off Employees

Note: The advisory below relates to a temporary emergency ordinance that has now expired. But effective May 16, 2021, San Francisco implemented a similar but modified Right to Reemployment Ordinance. This new Ordinance is scheduled to remain in effect for the duration of the local state of emergency declaration. For assistance interpreting or complying with this new Ordinance, please contact legal counsel.

San Francisco passed a Back-to-Work Emergency Ordinance (the Ordinance), providing a right to reemployment for certain employees laid off since February 25, 2020, due to the public health emergency created by COVID-19. The Ordinance adds another layer of complexity for larger businesses navigating the rapidly changing rules related to COVID-19.

(A summary of a similar Los Angeles Right of Recall Ordinance can be found here.)

The Ordinance was passed by the San Francisco County Board of Supervisors on June 23, 2020, and became effective on July 3, 2020. The Ordinance expires 61 days following its enactment.

When Does the Ordinance Apply?

The Ordinance is not triggered by every layoff. A qualifying layoff occurs under the Ordinance when 10 or more employees are separated from employment during any 30-day period due to lack of funds or work resulting from the COVID-19 public health emergency (declared by the Governor or Mayor) and any San Francisco Shelter-in-Place order (including a closure or cessation of business operations). Separation is defined by the Ordinance as "termination or end of employment" (triggering layoff).

The Ordinance applies to most for-profit and non-profit businesses in the City of San Francisco with 100 or more employees as of the earliest date since February 25, 2020, that an employer separated one or more employees that resulted in a triggering layoff. Public agencies and employers that provide "healthcare operation" services, as defined in the shelter-in-place order, are not subject to the Ordinance. The requirements of the Ordinance can be expressly waived by clear and unambiguous terms in a collective bargaining agreement.

What Are the Requirements of the Ordinance? 

The Ordinance requires that the City and certain employees receive layoff notices which include their rights under the Ordinance, certain employees be provided reemployment priority, and employers must reasonably accommodate certain employees who experience family care hardships.

Notice of Layoff

An employer who implements a triggering layoff must provide a written notice of the layoff to certain employees at or before the time the layoff becomes effective. While the duty to issue notices of layoff applies when 10 "employees" are being laid off, the notice need only be provided to "eligible workers"—those who are separated as part of a triggering layoff and have been employed by the employer for at least 90 days of the calendar year preceding the date the employee is given a notice of layoff.

The notice to eligible workers must be in a language understood by the worker, and include: a notice of the layoff and its effective date, a summary of the right to reemployment created under the ordinance, and a hotline number operated by the Office of Economic and Workforce Development (OEWD). For triggering layoffs that occurred before the effective date of the Ordinance, the employer shall provide the required written notice with 30 days of the effective date of the Ordinance.

Employers must also provide a notice of layoff to the OEWD within 30 days of the initiation of the triggering layoffs. If the employer did not foresee that a layoff would become a triggering layoff, such notice may be provided within seven days of the separation of the tenth employee. This notice to OEWD must identify: the total number of employees in San Francisco affected by the triggering layoff, as well as the job classification, date of separation for each eligible worker, and original hire date.

Employers must maintain records for each eligible worker for at least two years, including full legal name, job classification at time of separation, date of hire, last known address of residence, email address, and phone number, and a copy of the written notice of layoff.

Reemployment Offers

If an employer seeks to hire for a position that was formerly held by an eligible worker, or a substantially similar position in the city, the employer must first offer the available position to the eligible worker. A "substantially similar position" includes any of the following:

• A position with comparable job duties, pay, benefits, and working conditions to the eligible worker's position at the time of triggering layoff;
• Any position in which the eligible worker worked for the employer in the 12 months preceding the triggering layoff; and
• Any position for which the eligible worker would be qualified, including a position that would necessitate training that an employer would otherwise make available to a new employee to the particular position upon hire.

If an employer intends to offer reemployment to an eligible worker, and the employer separated more than one eligible worker from the same job classification, the employer must make offers of reemployment to such eligible workers based on former seniority, according to each eligible worker's earliest date of hire.

Offers of reemployment may be withheld due to:

• An eligible employee's misconduct, acts of dishonesty, or violations of law, policy, or employer rule that the employer learned of after worker was laid off;
• A severance agreement executed prior to the effective date of the ordinance where, in exchange for adequate consideration, the eligible worker agreed to a general release of claims against the employer; or
• The employer's having hired a person other than the eligible worker for the position prior to the effective date of this ordinance.

Employers must notify OEWD in writing of all offers, acceptances, and rejections of reemployment under this ordinance. The offer of reinstatement must be made in a particular fashion. Employers must engage in a good faith effort to notify eligible workers of reemployment by telephone and email, or alternatively, by physical mail:

• If the employer has a last known telephone number for the eligible worker - The employer must attempt to notify the eligible worker via phone that it wishes to extend a reinstatement offer, seek the worker's consent to send the offer by email, and inform the worker that consent must be provided via text message or email no later than 5:00 p.m. PT on the next business day.
  
  If the worker consents, the employer shall transmit the email offer no later than 5:00 p.m. PT on the first business day after receiving the consent. If the worker does not consent, the employer must send a written offer by certified mail or courier delivery to the worker's last known address. The offer shall remain open for at least two business days following delivery by certified mail or courier.
• If the employer has a last known email address for the eligible worker - The employer shall attempt to notify the eligible worker via email that it wishes to extend a reinstatement offer, seek the worker's consent to send the offer by email, and inform the worker that consent must be provided via text message or email no later than 5:00 p.m. PT on the next business day.
  
  If the worker consents, the employer shall transmit the email offer no later than 5:00 p.m. PT on the first business day after receiving the consent. If the worker does not consent, the employer must send a written offer by certified mail or courier delivery to the worker's last known address. The offer shall remain open for at least two business days following delivery by certified mail or courier.
• If the employer cannot obtain the worker's consent to receive the offer by email - The employer must send a written offer by certified mail or courier delivery to the worker's last known address. The offer shall remain open for at least two business days following delivery by certified mail or courier. The courier is authorized to deliver the offer to the residence without obtaining proof of receipt by the eligible worker.

Eligible workers may accept the offer in writing by a reasonable means identified by the employer (such as 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 method). If the eligible worker communicates their intent to accept by other means (such as telephone or text message), the employer must allow two business days for the worker to respond in the written reasonable means identified by the employer. If the worker fails to respond, it is deemed a rejection of the offer. The parties may mutually agree to extend the offer or acceptance time periods.

Family Care Hardship Accommodation

The Ordinance has a family care hardship exception that applies to eligible workers who are unable to work due to:

• 1) A need to care for a child whose school or place of care has been closed, or whose childcare provider is unavailable, as a result of the COVID-19 public health emergency, and no other suitable person is available to care for the child; or
• 2) Any reasons listed under the San Francisco Sick Leave ordinance to care for someone other than the worker.

Employers must make a good faith effort to reasonably accommodate an eligible worker while they experience a family care hardship, including modifying the schedule and hours to be worked, or permitting telework, to the extent feasible. Employers may not discriminate against or take adverse action as a consequence of an eligible worker experiencing a family care hardship.

The express duty to accommodate under the Back-to-Work Ordinance expires when the ordinance expires. However, employers are advised to review any obligations under other ordinances, orders and laws, including paid sick leave obligations, when these issues arise, notwithstanding this Ordinance.

Enforcement

The Ordinance authorizes workers to bring an action in court, seeking hiring and reinstatement rights, back pay, front pay, the value of benefits the worker would have received, and reasonable prevailing party attorneys' fees and costs.

What Employers Need to Do Now

Employers will need to assess immediately whether the Ordinance applies to their business, and if so, whether a triggering layoff has occurred that will require providing new or updated notices to employees or the City.

Employers should also educate supervisors and managers concerning the Ordinance, and develop a compliance plan, which should include:

• Tracking of new positions to ensure eligible employees are offered, or considered for, new positions as required;
• Review and potential updating of job descriptions and qualifications for purposes of minimizing compliance issues or disputes, while ensuring compliance;
• A checklist or protocol for tracking delivery, acceptance, or rejection or expiration of offers;
• A plan and/or documentation to confirm accommodation of family care hardship; and
• Review of document retention plans to ensure all notices and related communications are required for the two-year preservation period. 

Employers are also advised to continue to monitor guidance as available from the City concerning this Ordinance.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.