California Department of Labor Issues FAQ for Right to Recall Law

As many hospitality employers in California are returning to work, the California Department of Labor has released a new FAQ to help employers navigate the state’s recent right to recall law.

This law, Labor Code section 2810.8, requires employers to attempt to recall employees laid off due to the pandemic prior to hiring others for a newly opened position. The law took effect earlier this year, on April 16th, 2021, and applies until December 31st, 2024.

One of the most important provisions clarified in this new FAQ is the employee’s continuous right to recall. This means that if a former employee is recalled and refuses a job, they still possess the right to recall for all future job opportunities. Thus, the employer must still offer them all jobs similar to the one which they originally held prior to being laid off. Employers may send out conditional offers to several employees simultaneously and make the final decision based upon the seniority of the employees who accept.

Other important details clarified in this FAQ include:

• Employers Have Five Days to Offer: After establishing a new position, employers have five days in which to offer qualified laid-off employees the new position either physically or by mailing it to their last known address in addition to both text and email if known. Employees will have  five days in which to accept an offer once recalled

• Employers Must Maintain Records: Employers must keep records of any employees laid-off for three years from the date on the written notice given to the laid-off employee. This must include the full legal name of the employee, date of hire, last known address, copy of layoff notice, email address and phone number, and any subsequent employment offers. 

• Notice of Hiring Others: If an employer chooses not to recall an employee due to a lack of qualifications, the employer is required to inform the employee with a written notice within 30 days. This should include the length of service of those the employer chose instead of the employee with a right to recall, including all the reasons for such a decision

• Continuing Application: If the ownership of the employer changes, the employer’s assets are acquired by another entity that continues to use the same assets, the employer relocates, or the form of the organization changes, the employees still retains a right to recall so long as the employer continues the same or similar operations.

• Anti-Retaliation: Employees have a right to seek their rights under this provision free from adverse action, including for mistakenly alleging noncompliance. Employees may file a complaint with the Division of Labor Standards Enforcement to seek pay and the value of benefits lost for all days during which the violation occurs.
• Penalty for Failure to Comply:  Employers found in violation of these rules are subject to a civil penalty of $100 per employee who was overlooked and $500 every day for each employee until the violation is resolved. The Labor Commissioner will be responsible for investigating alleged violations, assigning temporary relief, and recovering the civil penalty and damages. In these actions, a court may also assign both preliminary and permanent relief for victims and interest on all amounts due. All of the remedies and civil penalties for violations are cumulative. If a collective bargaining agreement already contains specific provisions regarding these issues, these provisions can be waived.