As of July 3, 2020, San Francisco employers with 100 or more employees must offer a “right of reemployment” to certain employees who were or are laid off because of COVID-19 on or after February 25, 2020, prior to making any offers of employment to new applicants. The Emergency Ordinance—Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic (the “Emergency Ordinance”)—will remain in effect for 60 days unless extended. Notably, as discussed further in this article, covered employers must provide “right of reemployment” notices to covered former employees by August 2, 2020.
The Emergency Ordinance covers employers, both for-profit and non-profit, that directly or indirectly own or operate a business in the City and County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The Emergency Ordinance excludes federal, state, local or other public agencies, and employers that provide healthcare qualifying services, including hospitals, mental health providers, COVID-19 testing locations, pharmaceutical and biotechnology companies, healthcare suppliers, dentists, pharmacies, blood banks and blood drives and home healthcare service providers.
A covered layoff is a separation from employment of 10 or more covered employees within any 30-day period commencing on or after February 25, 2020, that is caused by an employer’s lack of funds or work for employees, resulting from the COVID-19 pandemic, including layoffs in conjunction with operational shutdowns due to the State and County Shelter In Place Orders.
Covered employees are those who were employed for at least 90 days in the calendar year preceding a covered layoff. While not clear in the Emergency Ordinance, covered employees are those who work and/or reside in San Francisco.
For future layoffs, covered employees must receive a written notice of their covered layoff in a language they can understand, at the time of or before the layoff occurs. For prior layoffs within the Emergency Ordinance window, covered employees must receive their written notice by August 2, 2020. In each case, the notice must include:
- Date of layoff notice and layoff effective date
- Summary of the right to reemployment under the Emergency Ordinance, and
- The telephone number for the San Francisco Office of Economic and Workforce Development (OEWD) worker information hotline
Employers must also notify the OEWD, in writing, of all covered layoffs within 30 days of the date the layoff is initiated, with some exceptions. This notice must include:
- Total number of employees located in San Francisco impacted by the layoff
- Job classification at the time of separation for each covered employee
- Original hire date for each covered employee, and
- Date of employment separation for each covered employee
Exceptions to Reemployment
Covered employers are not required to offer reemployment under the following circumstances:
- Misconduct—if, based on information learned subsequent to the layoff, the employer learns that the employee engaged in acts of dishonesty, violation of law, violation of policy or employer rules, or other misconduct during their employment.
- Severance agreement—if, (A) the company terminated the covered employee between February 25, 2020, and July 3, 2020, as part of a covered layoff, and (B) the company and covered employee executed a severance agreement as a result of the covered employee’s termination due to the layoff, pursuant to which, in exchange for adequate consideration, the employee agreed to a general release of claims.
- Rehiring—if, (A) the company terminated the covered employee between February 25, 2020, and July 3, 2020, as part of a layoff, and (B) prior to July 3, 2020, the company hired a person into the employee’s former position or substantially similar position.
The Emergency Ordinance includes other requirements, including instructions for how to deliver an offer of reemployment, record retention requirements, and also notably, a prohibition against an employer discriminating against or taking adverse employment action against a covered employee who is experiencing a family care hardship, including the need to care for a child whose school or place of care is closed.
Additionally, Oakland, Los Angeles and Long Beach have passed similar reemployment ordinances, though the covered employers and employees are limited to the travel and hospitality industries. Several labor organizations are pushing for statewide legislation and if passed, we will update this alert accordingly.
The full text of the Emergency Ordinance can be found here. If you have any questions or wish to discuss its impact, do not hesitate to reach out to the authors of this alert.