September 17, 2021

Volume XI, Number 260


September 17, 2021

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September 16, 2021

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September 15, 2021

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San Francisco’s COVID-19 Response: Emergency Back-to-Work Ordinance Requires Reemployment of Laid-Off Workers

On June 23, 2020, the San Francisco Board of Supervisors passed the “Back to Work” emergency ordinance. The ordinance requires certain San Francisco employers to offer reemployment to covered employees who were subjected to qualifying layoffs arising from the COVID-19 pandemic. The ordinance also requires employers to provide written notice of a layoff to employees and the City of San Francisco. In addition, employers must reasonably accommodate covered employees who are experiencing a “family care hardship.”

The ordinance becomes effective immediately upon signature by Mayor London Breed. It expires 61 days following enactment, unless the ordinance is reenacted.

To which employers does the ordinance apply?

The ordinance applies to any for-profit or non-profit employer that operates in the City or County of San Francisco and currently employs or since February 25, 2020, has employed 100 or more employees. It does not apply to federal, state, local, or other public agencies, or certain healthcare employers, including hospitals, clinics, COVID-19 testing locations, dentists, and pharmacies.

Who is a covered employee?

To be protected by the ordinance, an employee must have been subjected to a covered layoff. The employee also must have been employed by the employer for at least 90 days during the calendar year before the employer gave written notice of the layoff. 

What is a covered layoff under the ordinance?

The ordinance defines a covered layoff as a separation of:

  • 10 or more employees;
  • occurring during any 30-day period, beginning on or after February 25, 2020;
  • due to a “lack of funds or lack of work” resulting from the COVID-19 public health emergency as declared by the governor of California, the mayor of San Francisco, or any shelter-in-place order issued by the City and County of San Francisco.

Must employers provide written notice of covered layoffs?

Yes. An employer that conducts a covered layoff must provide written notices to (1) affected covered employees and (2) the city’s Office of Economic and Workforce Development (OEWD). This requirement is in addition to any written notice obligation that an employer may have under the federal Worker Adjustment and Retraining Notification (WARN) Act or Cal-WARN Act.

Written notice to employee

If the covered layoff occurred before the ordinance’s effective date, the employer must provide employees written notice within 30 days of the ordinance’s effective date. For covered layoffs that take place after the ordinance’s effective date, the employer must provide the written notice on or before the layoff’s effective date.

The notice to covered employees must:

  • list the effective date of the layoff;
  • be in a language understood by the employee;
  • summarize the employee’s right to reemployment under the ordinance; and
  • include a telephone hotline number for the employee to reach the OEWD.

Written notice to the City of San Francisco

The employer also must provide written notice to the OEWD “within 30 days of the date it initiates the [l]ayoff.” If the employer did not foresee that a separation would result in a covered layoff (e.g., affecting 10 or more employees), the employer must “provide such written notice within seven days of its [s]eparation of the tenth employee in a 30-day period.”

The notice to the OEWD must identify:

  • the total number of San Francisco employees affected by the layoff;
  • the job classification of each covered employee;
  • the original hire date of each covered employee; and
  • the date of separation of each covered employee.

When must an employer offer reemployment to a laid-off employee?

Before an employer hires an individual to fill a position, the employer first must offer the position to the employee who formerly held it.

Similarly, if an employer seeks to hire a person to fill a position substantially similar to a position held by a covered employee, the employer must first offer the substantially similar position to the covered employee. A “substantially similar position” is one with:

  • “comparable job duties, pay, benefits, and working conditions” as the covered employee’s position at the time of the covered layoff;
  • “any position in which the [covered employee] worked for the [e]mployer in the 12 months preceding the [covered] [l]ayoff”;
  • “any position for which the [covered employee] would be qualified, including a position that would necessitate training that an [e]mployer would otherwise make available” for a new hire.

What if multiple covered employees are eligible for reemployment into a single position?

Under the ordinance, employers must make offers of reemployment based on covered employees’ seniority.

How must an employer convey an offer of reemployment?

Employers must make a good faith effort to notify covered employees of an offer of reemployment. Employers first must attempt to reach covered employees by telephone and email. If the employer is unable to reach the employee by telephone or email, then the employer must attempt to contact the employee by certified mail or courier.

By telephone and email

If the employer has a record of the covered employee’s last known telephone number and/or email address, the employer must attempt to contact the employee by each of those methods and notify the employee that the employer wishes to extend an offer of reemployment. If the employee consents to receive the offer by email, the employer must email the written offer to the employee by 5:00 p.m. Pacific standard time on the first business day following the employer’s receipt of the employee’s consent. If the employee does not timely consent to receiving the offer by email, the employer must send the written offer by certified mail or courier to the employee’s last known address. The offer must remain open at least two business days following its delivery by certified mail or courier.

By mail

If the employer does not have a record of the covered employee’s telephone number or email address, the employer must send the written offer by certified mail or courier to the employee’s last known address. The offer must remain open at least two business days following its delivery by certified mail or courier.

How may an employee accept an offer of reemployment?

The employer may require the covered employee to return a signed version of the offer letter “by reasonable means identified by the [e]mployer including, without limitation, returning a signed version of an offer letter by any reasonable method of delivery or, if authorized by an [e]mployer, by applying an electronic signature and transmitting acceptance of the offer to an [e]mployer by email or other reasonable electronic method.” The employer must allow the employee two business days from the date of his or her notice of intent to accept the offer “to respond in the written reasonable means identified by the [e]mployer.”

Employers and employees can mutually agree to extend the offer and acceptance time periods set forth in the ordinance.

What if an employee fails to respond to an offer of reemployment?

If a covered employee fails to timely respond to an offer of reemployment, the ordinance deems the offer rejected.

Must employers notify OEWD of an employee’s acceptance or rejection of an offer?

Yes, employers must notify OEWD in writing of all offers of reemployment made and all acceptances and rejections thereof.

Are there any exceptions to making an offer of reemployment?

Yes. An employer may withhold an offer of reemployment under three circumstances, including:

  • after the covered layoff, the employer learns that the employee engaged in any act of dishonesty, violation of law, violation of an employer rule or policy, or other misconduct during his or her employment;
  • the employee and employer executed a severance agreement as part of the covered layoff during the period beginning with the public health emergency and prior to the ordinance’s effective date wherein, in exchange for adequate consideration, the employee agreed to a general release of claims against the employer; or
  • the covered employee’s layoff predated the ordinance’s effective date and, prior to the ordinance’s effective date, the employer hired a person other than the employee to fill the employee’s position or a substantially similar position.

Can a collective bargaining agreement waive an employee’s rights under the ordinance?

Yes, but the collective bargaining agreement must expressly waive such reemployment rights in clear and unambiguous terms.

Must employers retain any records?

Yes. Employers must retain the following records regarding each covered employee for at least two years:

  • the employee’s full legal name;
  • the employee’s job classification at the time of separation;
  • the employee’s date of hire;
  • the employee’s last known address of residence;
  • the employee’s last known email address;
  • the employee’s last known telephone number; and
  • a copy of the written notice of layoff provided to the employee.

Under the ordinance, two years is measured from the date the written notice was provided to the covered employee.

Must employers reasonably accommodate covered employees?

Yes. Employers may not discriminate or take an adverse employment action against a covered employee who is unable to work because of a “family care hardship.” A family care hardship includes (a) an employee’s need to care for his or her child due to the closure of the child’s school or place of care as a result of COVID-19 where no other suitable person is available to care for the child; or (b) any reasons for which an employee may use leave under San Francisco’s Paid Sick Leave Ordinance to care for another.

Employers must engage in “good faith efforts” to reasonably accommodate covered employees who are experiencing a family care hardship. The ordinance defines “reasonably accommodate” to cover, without limitation, modifying the employee’s schedule, modifying the employee’s hours of work, permitting teleworking, or otherwise accommodating the employee to the extent feasible.

What are the penalties for failing to comply with the ordinance?

A covered employee can bring an action in the Superior Court of the State of California for violation of the ordinance and seek the following relief:

  • reinstatement;
  • back pay;
  • front pay;
  • value of lost benefits; and
  • reasonable attorneys’ fees and costs.
© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 185

About this Author

Charles Thompson, Ogletree Deakins Law Firm, Employment Law Attorney

Charles L. Thompson IV counsels and defends employers in wrongful termination, discrimination, and other employment-related matters.  These areas include trade secrets and unfair competition, California and federal leaves of absence, ADA compliance, and wage and hour compliance.

Charles also represents employers in traditional labor law matters. He advises and represents employers in collective bargaining. He also represents employers in matters before the National Labor Relations Board, including in unfair labor practice and representation...

Andrew M. Massara Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart San Francisco, CA

Andrew defends employers in state and federal court as well as in administrative proceedings and private arbitrations.  He has represented clients facing claims of wage and hour violations, discrimination, harassment, retaliation, and wrongful termination.  Andrew has substantial experience in all phases of litigation including investigations and witness interviews, pleadings, written discovery, taking and defending depositions, mediation and settlement negotiations, dispositive motion practice, arbitrations, court trials, jury trials, and post-trial briefing.

In addition to his...