San Francisco Enacts a Non permanent Ordinance Granting Employees Laid Off As a consequence of COVID-19 a Proper to Reinstatement

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On July 3, 2020, San Francisco issued a temporary emergency ordinance that requires companies with more than 100 employees to reemploy employees who have been laid off due to the COVID-19 pandemic. This ordinance, known as the Back to Work Emergency Ordinance, which aims to mitigate the serious economic damage suffered by people who were unable to work due to the public health emergency caused by COVID-19, creates a right to re-employment for Eligible dismissed employees if their previously insured employer resumes business and / or wants to hire new staff. According to its provisions, this law only remains in force for 60 days. Unless it is renewed or put into effect, the law will therefore only remain in force until September 1. However, the legal effects it will continue to have on hiring rights, duties and duties in San Francisco after the expiration remain open.

Some of the key points are:

The employers who fall under the new law and who may be held liable for violations

For the purposes of this new law, the term "employer" means any "person" who directly or indirectly owns or operates a for-profit or nonprofit in the city of San Francisco and employs 100 or more people from the date the Employer fired or fired an employee for the first time on or after February 25, 2020 (when Mayor Breed first explained health status based on COVID-19). For the purposes of this article and for ease of reference, these covered employers are referred to as "employer. ”

Although the definition is specific to “person (s)” and says nothing about the actual companies that they may own or operate, this new law is likely to apply to those companies as well. The legal effect of the reference of the definition to "person" can therefore mean that the liability for violations of this new law can be personal for the owners / operators of an insured company and can also apply to the companies that own or operate them.

Federal, state, local or other public bodies are excluded from this definition of "employer". Also excluded are employers who offer services that are considered health care companies, including hospitals, clinics, virus test sites, dentists, pharmacies, blood banks, pharmaceutical and biotech companies, healthcare providers, providers of home health services, providers of mental health services and related / additional health services as well as veterinary care and animal health services.

The employees who are covered and protected by this new law

Employees entitled to protect this new law are referred to as "Employees or Labor force,”Are those who (1) were previously employed by an employer at least 90 days of the calendar year prior to the date on which their employer provided them with a written notice of covered dismissal / dismissal, and (2) were separated due to one Dismissal according to the new statute, a "Dismiss.Those whose release is not covered by the law, i.e. H. Those layoffs that are not related to the COVID 19 public health emergency do not appear to be covered.

The layoffs covered by the new law

For the purposes of the new law, covered layoff is a separation due to the dismissal of 10 or more workers by an employer for a period of 30 days, beginning on or after February 25, 2020, caused by the lack of resources on the part of the employer or lack of work for its employees due to the COVID 19 public health emergency (declared by the governor and / or the mayor) and any accommodations to instruct residents to stay at home and stay in place, and to prohibit the operation of accommodation. This definition includes any dismissal that occurs in connection with the closure or cessation of an employer's business in the city. However, workers who work from home, telework or telework are unlikely to be fired for the purposes of this new law and are therefore unlikely to be covered and protected by this new law.

The material requirements of the new law

  • Mandatory notifications / records regarding discharge
    • Written notice of termination and right to re-employment of existing workers – Under the new law, employers must provide workers with written notice on or before the effective date of the dismissal if an employer fires after February 25, 2020, which includes the following information: a notice that they will be released under the new law, the date of entry into force of the release, a summary of their right to re-employment created by this new law, and the telephone number for a hotline to be operated by the City's Office for Economic Development and Human Resources (OEWD) workers can call to get information about their legal rights and the city's resources related to unemployment.
    • Written notice of dismissal and right to re-employment of former employees – Likewise, on or before August 2, an employer must send written notice to employees affected by a dismissal before July 3 with the following information: a notice of their dismissal as defined by the new law Date of entry into force of this dismissal, a summary of their right to re-employment created by this new law, and the telephone number for a hotline operated by the OEWD that workers can call to obtain information about their rights under the law and the resources of the information City related to unemployment.
    • Notification to the city of a layoff – An employer must provide OEWD with written notice of a covered layoff within 30 days of the date on which the layoff is initiated. If an insured employer does not foresee the occurrence of a covered layoff, the employer must notify the tenth employee in writing within 30 days of the tenth employee's termination within seven days of termination (which will result in covered layoff). In a written notice to the OEWD, the total number of employees affected by a layoff in San Francisco, the job classification at the time of the separation for each dismissed worker, the original hiring date for each affected employee, and the date of their dismissal must be reported.
    • Retention of records – If an employer initiates a dismissal, he must keep the following records of that employee for at least two years (from the date of written notice to an employee) – the employee's full legal name and its classification at that time of dismissal, their hiring date, their last known home address, their last known email address, their last known telephone number and a copy of the written notice of their dismissal that was made available to the employee.
  • Obligation of an employer to offer re-employment to workers after dismissal

The new law also gives employees a priority right of reintegration / reinstatement if their employer tries to reinstate their workforce. The new law therefore requires an employer to offer a dismissed worker the previous or substantially similar position of a worker before offering the job to another person. For the purposes of this new law, a “substantially similar position” includes: a position with comparable tasks, wages, benefits and working conditions that are comparable to the position of the worker at the time of his dismissal; any position in which the employee worked for the employer in the 12 months prior to dismissal; and any position for which the employee would be qualified, including a position that would require training if such training were otherwise available to a new employee. If there is more than one incumbent who holds the same or a substantially similar position, the law instructs the employer to offer reintegration offers to employees based on their relative seniority, with reintegration at the earliest start date the employee goes.

  • An employer's obligation not to discriminate and his affirmative obligation to adequately accommodate workers suffering from family difficulties

The new law also prohibits an employer from discriminating against an employee or taking adverse action if that employee gets into family care difficulties. For the purposes of the new law, family harshness means that an employee cannot work because either (1) their child needs care, their school or place of care has been closed, or their childcare facility is unavailable as a result of the public health emergency , and no other suitable person is available to care for the child while an employee is on vacation, or (2) if an employee would otherwise be entitled to paid sick leave to care for someone other than himself during the vacation Sick leave regulation. In addition, the new law entitles an employee to appropriately adjust his or her job duties or work requirements if a family hardship impairs his or her ability to meet those job duties or work requirements. Under the new law, an employer must therefore, in good faith, make an effort to adequately accommodate the employee upon request from an employee. This means that the schedule of the worker, the number of hours he needs to work or admit him, are changed teleworking, as far as this is feasible, during the time of their family hardship. Significantly, and unlike other obligations imposed on employers by this new law, the placement obligation will explicitly expire on September 2 when the new law expires.

There are three very limited exceptions to an employer's obligation to offer re-employment to eligible dismissed employees

An employer may withhold re-employment based on information received after the dismissed dismissal that the employee has committed dishonesty, violations of the law, violations of an employer's policy or rule, or other misconduct during his employment. Likewise, an employer may withhold re-employment if an employer dismissed an employee before July 3, 2020 (the effective date of this Act) and the employer and employee entered into a severance agreement based on that dismissal before July 3 and in return For reasonable consideration, the employee agreed to a general release of claims against the employer. Finally, an employer may withhold an offer of reemployment if the employer has fired a qualifying employee prior to the effective date of this Act and the employer prior to the effective date, other than the qualifying employee for the position of the redundant worker or for the company has set a substantially similar position.

Legally required methods / requirements for re-employment offers as well as acceptance and notification of the city

Under the new law, employers must do their best to inform employees by telephone and email about the employer's offer of reemployment. If an employer does not have phone or email contact information for an employee or is unable to contact them by phone or email, the employer tries to contact the employee by registered mail or courier. The form, sequence and timing of the legally required notifications of acceptance and acceptance are laid down in the regulation and detailed, which is beyond the scope of this article. You can find these details in Section 7 of the new regulation.

In addition to the requirements listed above that affect re-employment offers and assumptions, employers are required to notify OEWD in writing of all re-employment offers made under the new regulation and any acceptances and rejections of such offers Reemployment by workers.

Sanctions / liability for violations

Employees can file a lawsuit with a state court for violations of the new ordinance and will receive: hiring and reinstatement rights, reimbursement for each day of the violation, and upfront payment for each day the violation continues, and awarding of the services provided by the Would have received employees under the employer's pension plan. If the worker is the dominant party, the court will award them the reasonable attorney's fees and costs. The new law also does not in any way limit the rights and remedies that the law otherwise offers workers, including the right to be free from unlawful dismissal and illegal discrimination.

There is a limited safe haven for employers covered by collective bargaining

The new law does not apply to employers to whom a serious collective agreement applies, provided the CBA explicitly and explicitly waives the requirements of the new law.

As you know, things change quickly and there is a lack of clear authority or clear rules for implementation. This article is not intended to be a clear, unified guide, but represents our interpretation of the current and general state of affairs. This article does not address the potential impact of the numerous other local, state, and state orders issued in response to the COVID 19 pandemic, including, without limitation, the potential liability in the event of an employee becoming ill, Pay for family vacation or illness requirements and other issues.

Sheppard Mullin endeavors to provide employers with updated information on COVID-19 and its effects on the workplace. Find out about the legal implications of Sheppard Mullin's Coronavirus Insights portal, which now brings together the company's various COVID-19 blog posts on a wide range of topics.

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