Employment Law Alert: San Francisco “Back to Work” Emergency Ordinance Creates Notification and Reemployment Obligations to Laid Off Employees

On June 23, 2020, the San Francisco Board of Supervisors passed the “Back to Work” Emergency Ordinance (the “Ordinance”). When Mayor London Breed returned the Ordinance unsigned on July 3, 2020, this enacted it into law. As discussed more fully below, the Ordinance creates obligations for employers in certain circumstances to provide layoff notices to employees, as well as to reemploy employees impacted by these layoffs.

Covered Employers 

The Ordinance applies to any for-profit or non-profit business operating in San Francisco that, on or after February 25, 2020, employed 100 or more employees as of the date the business begins a qualifying layoff (explained below). However, federal, state, local, and other public agencies, as well as businesses that provide services qualified as healthcare operations (defined in San Francisco Order of the Health Officer Number C19-07e) are excluded.

Covered Employees

The Ordinance applies to laid off employees who were employed by their employer for at least 90 days of the calendar year preceding the date on which they received notice of the layoff. The Ordinance is silent as to the location of the employees, although the layoffs would need to result from any order of the Health Officer of San Francisco, suggesting it would likely be applicable to employees laid off in San Francisco.

Covered Layoffs 

The Ordinance applies to a layoff of 10 or more employees during any 30-day period, commencing on or after February 25, 2020, and which is caused by the employer’s lack of funds or lack of work for its employees, resulting from the COVID-19 health emergency and any San Francisco shelter in place order. The layoff would need to result in the termination or end of employment. Although this seems to suggest it would not apply to furloughs, certain furloughs do constitute termination of employment under various laws so employers should consult with counsel to determine whether the Ordinance may cover a furlough.

Notice to Employees 

The Ordinance requires that for covered layoffs beginning on or after February 25, 2020, employers must provide notice to impacted employees at or before the time the layoff becomes effective, in a language understood by the impacted employees. The notice must 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) a telephone number for a hotline, to be operated by the Office of Economic and Workforce Development (“OEWD”), which impacted employees may call to receive information regarding the right to reemployment created by the Ordinance, as well as navigation services and other San Francisco resources related to unemployment. 

For employees laid off from February 25, 2020 through July 2, 2020, the employer must provide such notice within 30 days of the effective date of the Ordinance (i.e., on or before August 2, 2020).

Notice to San Francisco

Employers must also provide a notice of layoffs to the OEWD. Such notice must be provided within 30 days of the date an employer initiates a layoff. Because the Ordinance is silent as to when notice must be provided to the OEWD for layoffs occurring from February 25, 2020 through July 2, 2020, employers should provide such notice as soon as possible. In the event a layoff was unforeseeable, the employer must provide such notice within seven days of its separation of the tenth employee in a 30-day period. Notice to the OEWD must include: (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 covered employee; (iii) the original hire date for each covered employee; and (iv) the date of separation from employment for each covered employee. Employers must also notify the OEWD in writing of all offers of reemployment made under the Ordinance (discussed below), as well as all acceptances and rejections of such offers.

Offers of Reemployment

Importantly, in certain situations, employers who have engaged in covered layoffs must make offers of reemployment to covered employees. Where an employer initiates a covered layoff on or after February 25, 2020, and subsequently seeks to hire for a position formerly held by a covered employee or one that is substantially similar, the employer first must offer the covered employee an opportunity for reemployment to his or her former position before offering the position to another person. In the event the employer is not bringing back as many employees as it separated from a particular job classification, it must make offers of reemployment based on the employees’ former seniority with the employer (i.e., to the longest tenured employee first, based on the employees’ earliest date of hire with the employer). Covered employers are not required to make offers of reemployment under the following circumstances:

• Based on information learned subsequent to the layoff, the employer learns that the covered employee engaged in any act of dishonesty, violation of law, violation of policy or rule of the employer, or other misconduct during employment.

• The employee was laid off between February 25, 2020 and July 3, 2020, and as a result of the layoff and prior to July 3, 2020, the employee agreed to a general release of claims in exchange for adequate consideration.

• The employee was laid off between February 25, 2020 and July 3, 2020, and prior to July 3, 2020, the employer hired someone other than the covered employee to the former position, or a substantially similar position.

Notifying Employees of Offers of Reemployment

If an employer has a record of a covered employee’s last known telephone number, it must make a good faith effort to notify the employee of an offer of reemployment by telephone. If contact is made, the employer must seek the employee’s consent to deliver the offer of reemployment by email and if the employee consents, the employee must provide written consent by text message or email by 5:00 p.m. PST on the business day immediately following the date on which telephone contact is made. Then, the employer must transmit the offer by email by no later than 5:00 p.m. PST on the business day immediately following such written consent. If the employee does not consent to receive the offer by email, the employer must send it by certified mail or courier delivery. The offer must remain open for at least two business days following delivery. If an employer has a record of a covered employee’s last known email address, it must also make a good faith effort to notify the employee of an offer of reemployment by email. The email communication must state that: (i) the employer wishes to extend an offer of reemployment; (ii) it seeks the employee’s consent to transmit a written offer of reemployment by email; and (iii) if an employee consents, the employee must provide the employer with written confirmation of consent by text message or email no later than 5:00 p.m. PST the next business day. The employer’s obligation with respect to timing of emailing the offer of employment is the same as with respect to the preceding paragraph regarding informing the employee by telephone. If the employer is unable to reach the employee by telephone or email, it must still send an offer of reemployment by certified mail or courier.

Non-Discrimination and Duty to Reasonably Accommodate a Family Care Hardship 

In addition to the right to reemployment, the Ordinance also prohibits employers from discriminating against or taking an adverse employment action against a covered employee as a consequence of a family care hardship. The Ordinance defines a “family care hardship” as: (i) a need to care for a child whose school or place of care has been closed or whose childcare provider is unavailable as a result of COVID-19 with no other suitable person to care for the child; or (ii) any other grounds covered by San Francisco’s paid sick leave ordinance to care for someone other than the employee. The Ordinance provides that a covered employee is entitled to reasonable accommodation of a job duty or job requirement if a family care hardship impacts the ability to perform a job duty or to satisfy a job requirement. The Ordinance provides that to “reasonably accommodate” includes, without limitation, modifying an employee’s schedule, modifying the number of hours to be worked, or permitting telework, to the extent operationally feasible, to accommodate the employee’s family care hardship. While the Ordinance does not specifically call out a leave of absence as a form of accommodation, it does state that reasonable accommodations are not limited to the above examples. Employers should consult with counsel in the event an employee requests a reasonable accommodation that is not explicitly specified by the Ordinance. The Ordinance states that the duty to accommodate expires upon expiration of the Ordinance (although other laws may still apply).

Retention of Records 

Where an employer initiates a covered layoff on or after February 25, 2020, it must retain the following records for at least two years regarding each covered employee: (i) full legal name; (ii) job classification at the time of separation from employment; (iii) date of hire; (iv) last known address of residence; (v) last known email address; (vi) last known telephone number; and (vii) a copy of the notice regarding the layoff.

Penalties for Violations 

There are significant penalties for violation of the Ordinance. Employees may bring a lawsuit in Superior Court and be awarded reinstatement rights, as well as recovery of back pay, front pay, the value of lost benefits, and attorneys’ fees. The Ordinance will remain in effect through September 1, 2020, unless further extended by the Board of Supervisors.