San Francisco Enacts Back-to-Work Emergency Ordinance Mandating Reemployment for Certain Employees Laid Off Due to COVID-19 Pandemic

July 9, 2020
On July 3, 2020, San Francisco enacted a Back-to-Work Emergency Ordinance temporarily creating a right to reemployment for certain employees laid off due to the COVID-19 pandemic if their employer seeks to fill the same, or a substantially similar, position previously held by a laid-off worker. The Ordinance will remain in effect for 60 days until September 1, 2020, unless it is reenacted by the San Francisco Board of Supervisors.
 
Covered Employers. The Ordinance applies to for-profit and non-profit employers that (i) directly or indirectly own or operate a business in the City or County of San Francisco and, (ii) beginning on or after February 25, 2020, employed or employs 100 or more employees as of the earliest date that an employer separated or separates one or more employees that subsequently resulted or results in a layoff. The Ordinance exempts federal, state, local, or other public agencies and certain employers that provide services that qualify as healthcare operations.
 
Eligible Workers. The Ordinance applies to persons who were employed by their employer for at least 90 days of the calendar year preceding the date on which their employer provided written notice of a layoff and who were separated because of a layoff. Under the Ordinance, a layoff is defined as a separation of 10 or more employees during any 30-day period, beginning on or after February 25, 2020, that is caused by the employer’s lack of funds or lack of work for its employees resulting from the COVID-19 public health emergency and any stay-at-home order.
 
Offers of Reemployment
  • Offer of Reemployment to the Same Position. Employers seeking to hire a person to a position formerly held by an eligible worker must first offer the eligible worker an opportunity for reemployment to his or her former position before offering the position to another person.
     
  • Offer of Reemployment to a Substantially Similar Position. Employers seeking to hire a person to any position that is substantially similar to an eligible worker’s former position must first offer the position to the eligible worker before offering it to another person. “Substantially similar position” is defined as: (i) a position with comparable job duties, pay, benefits, and working conditions to the eligible worker’s former position; (ii) any position the eligible worker held in the 12 months preceding the layoff; and (iii) any position for which the eligible worker would be qualified, including a position that would require training that an employer would otherwise make available to a new employee upon hire.
     
  • Order of Seniority. If an employer intends to offer reemployment to an eligible worker and there is more than one eligible worker with the same job classification, the employer must make offers of reemployment based on seniority, which is determined by the eligible worker’s earliest date of hire.
     
  • Exceptions. An employer may withhold an offer of reemployment under the following circumstances: (i) the employer learned subsequent to the layoff of the eligible worker that the eligible worker engaged in misconduct during his or her employment; (ii) before the effective date of the Ordinance, the eligible worker executed a severance agreement as a result of the layoff that included a general release of claims against the employer; and (iii) the employer hired a new employee for the position prior to the effective date of the Ordinance.
     
  • Notice of Offer. Employers must engage in good-faith efforts to notify eligible workers by telephone and email of offers of reemployment. If an employer does not have telephone or email contact information for an eligible worker or is unable to make contact with an eligible worker by telephone or email, then the employer must attempt to contact the eligible worker by certified mail or courier delivery.
     
  • Acceptance. Eligible workers must accept an offer of reemployment by providing a response to the employer in writing by reasonable means identified by the employer. If the eligible worker notifies the employer of his or her intent to accept the offer by other means, the employer must allow the eligible worker two business days from that date to respond in the manner identified by the employer. If the eligible worker fails to respond to an offer of reemployment within certain specified timeframes, the eligible worker will be deemed to have rejected the offer of reemployment. The employer is then permitted to offer the position to the next most senior eligible worker, or if there are no alternative eligible workers, to another job candidate.
Additional Employer Obligations
  • Written Notice of Layoff to Eligible Workers. Employers must provide eligible workers with written notice of a layoff at or before the time of the layoff. If the layoff occurred before the effective date of the Ordinance, the employer must provide such notice within 30 days of the effective date of the Ordinance. The written notice must be in a language understood by the eligible worker and include: (i) a notice of the layoff and the layoff’s effective date; (ii) a summary of the right to reemployment created by the Ordinance; and (iii) the telephone number for a hotline to be operated by the Office of Economic and Workforce Development (“OEWD”).
  • Written Notice of Layoff to OEWD. An employer must provide written notice of a layoff to the OEWD within 30 days of the date it initiates the layoff. If the employer did not foresee that there would be a layoff, the employer must provide the OEWD written notice within seven days of its separation of the tenth employee in a 30-day period. The written notice must identify: (i) the total number of employees located in San Francisco affected by the layoff; (ii) the job classification at the time of separation for each eligible worker; (iii) the original hire date for each eligible worker; and (iv) the date of separation from employment for each eligible worker.
     
  • Retention of Records. Employers that initiate layoffs must retain the following records for at least two years regarding each eligible worker: (i) legal name; (ii) job classification at the time of separation; (iii) date of hire; (iv) last known address of residence, email address, and telephone number; and (v) a copy of the written notice regarding the layoff. The two-year period is measured from the date the written notice was provided to the eligible worker.
     
  • Non-Discrimination and Duty to Reasonably Accommodate Family Care Hardships. Employers are prohibited from discriminating or taking an adverse employment action against eligible workers with a family care hardship. Employers are required, when requested by an eligible worker, to provide reasonable accommodation to the eligible worker with a family care hardship during the period in which they experience the hardship. Eligible workers experience family care hardships when they are unable to work due to either: (i) the need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable as a result of the public health emergency, and no other suitable person is available to care for the child during the period of such leave; or (ii) any reason that a person may use leave under San Francisco’s Paid Sick Leave Ordinance to provide care for someone other than themselves.
Remedies for Violations. Eligible workers may file a lawsuit in the Superior Court of the State of California against an employer for violating the Ordinance and may be awarded the following relief: (i) hiring and reinstatement rights; (ii) back pay and front pay; (iii) the value of the benefits the eligible worker would have received under the employer’s benefit plan had the violation not occurred; and (iv) reasonable attorneys’ fees and costs.
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.

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