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Legal Alert

San Francisco Passes Back-To-Work Emergency Ordinance Mandating Reemployment For Certain Workers

6.25.20

The San Francisco Board of Supervisors just passed the Back-to-Work Emergency Ordinance aimed at guaranteeing reemployment to certain workers who were laid off by covered employers due to the COVID-19 pandemic. This Ordinance creates a temporary right to reemployment when certain larger employers seek to hire workers for the same or substantially similar positions previously held by other workers who were recently laid off. This Ordinance also prohibits covered employers from discriminating against those laid-off workers with family care hardships and allows them to request reasonable accommodations for the hardships. The Ordinance, approved on June 23, will become effective immediately upon the Mayor’s signature and will expire upon the 61st day following enactment unless extended.  What do San Francisco employers need to know about this new obligation?

[Ed. Note: The Ordinance, enacted on July 3, was set to expire on September 1, 2020. However, San Francisco has reenacted the ordinance and it will remain in effect for at least another 61 days.]

Who Is A Covered Employer?

It is important to first understand that only certain “covered employers” are subject to the Ordinance’s requirements. “Covered employers” are defined as for-profit and non-profit 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.

Excluded from coverage are certain employers that provide healthcare operations are exempt from the Ordinance, including hospitals, clinics, COVID-19 testing locations, dentists, pharmacies, blood banks and blood drives, pharmaceutical and biotechnology companies, healthcare suppliers, home healthcare suppliers, mental health providers, and veterinary care and other healthcare service providers to animals. Federal, state, local, or other public agencies are also exempt from this Ordinance. 

What Is A Covered Layoff?

Only certain lay-offs are covered as part of this new obligation. Those include any lay-off of ten or more employees in any 30-day period starting from February 25, 2020 until the expiration of the Ordinance. Also, the lay-off needs to have been caused by the employer’s lack of funds and/or the lack of work for its employees due to the COVID-19 Public Health Emergency and any Shelter-in-Place Order.

Who Is An Eligible Worker?

Eligible Workers are those who were employed for at least 90 days in the preceding calendar year and separated from their employment due to a covered lay-off.

Employer Obligations Under The Back-To-Work Emergency Ordinance

 Covered employers have five basic obligations under the new Ordinance.

1. Written Notice Of Layoff To Eligible Worker

First, employers implementing a lay-off must provide each Eligible Worker with written notice, in a language the worker understands, either at the time of or before the lay-off. If the lay-off has already occurred, employers must provide the notice to each Eligible Worker within 30 days of the Effective Date of this Ordinance. 

The notice must provide:

2. Offers Of Reemployment

Employers seeking to fill the same, or substantially similar, positions previously held by Eligible Workers must hire in accordance with following the rules:

Employers and Eligible Workers may extend the offer periods by mutual agreement.

3. Written Notice To The OEWD

Employers must provide written notice of a lay-off to the OEWD within 30 days of the date it initiates the lay-off. If an employer does not anticipate or foresee that there will be a Layoff, it must provide written notice within seven days of the lay-off date of the 10th affected Eligible Worker in 30 days. Employers must provide the following information to the OEWD:

Employers must also notify the OWED in writing of all offers of reemployment, including all acceptances and rejections.

4. Retention of Records

Employers that conduct a lay-off must retain the following records for at least two years regarding each affected Eligible Worker:

The two-year period is measured from the date the written notice was provided to the Eligible Worker. 

5. Duty to Not Discriminate and Reasonably Accommodate Family Care Hardships

Employers are prohibited from discriminating against or taking adverse employment actions against an Eligible Worker with a “Family Care Hardship.” Employers must also, when requested, provide reasonable accommodations to Eligible Workers with Family Care Hardships. Reasonable accommodations may include modifying the Eligible Worker’s schedule, modifying the number of hours worked, or to the extent feasible, permitting telework. “Family Care Hardship” means an Eligible Worker is unable to work due to either:

Are There Any Exceptions?

Employers may withhold offers of reemployment for the following three reasons:

  1. Misconduct: Employers are not required to offer reemployment to Eligible Workers if the employer, after the lay-off, learns that the Eligible Worker engaged in any act of dishonesty, violation of law, violation of employer’s policy or rule, or other misconduct.
  2. Severance Agreement: Employers are not required to offer reemployment to Eligible Workers who separated as part of a lay-off between February 25, 2020 and the Effective Date of this Ordinance and executed a severance agreement which included a general release of claims against the employer and adequate consideration.
  3. Rehiring: Employers are not required to offer reemployment to Eligible Workers who separated as part of a lay-off between February 25, 2020 and the Effective Date of this Ordinance so long as, prior to the Effective Date of this Ordinance, the employer had hired another person.

Further, this Ordinance does not apply to Eligible Workers covered by a bona fide collective bargaining agreement to the extent that the requirements of this Ordinance are expressly waived in the collective bargaining agreement in clear and unambiguous terms.

What Are The Penalties For Non-Compliance?

Eligible Workers may bring a lawsuit in the Superior Court of the State of California against the employer for violating this Ordinance and may be awarded the following relief:

The Ordinance also does not limit an Eligible Worker’s other rights and remedies, including the right to bring claims for wrongful termination and unlawful discrimination. 

Conclusion

We will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our San Francisco office, or any member of our Post-Pandemic Strategy Group Roster. You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.


This Legal Alert provides an overview of specific city laws. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

 

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