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San Francisco Passes Emergency Temporary Back to Work Ordinance
Jul 3, 2020

San Francisco Passes Emergency Temporary Back to Work Ordinance

Topics: COVID-19

On June 23, 2020, the San Francisco Board of Supervisors passed an emergency ordinance requiring employers with more than 100 employees who laid off employees due to the COVID-19 pandemic to rehire those employees if it seeks to re-fill the same (or substantially similar) positions.  This ordinance became effective on July 3, 2020.  It also expires on the 61st day after enactment, unless further extended.

This Temporary Right to Re-employment Following Lay-Off Due to COVID-19 Pandemic Ordinance, also known as the “Back to Work” Ordinance (“Ordinance”), applies to for-profit and non-profit employers in San Francisco that, as of February 25, 2020, employed 100 or more employees as of the earliest date the employer laid off 1 or more employees.  Employers exempted from this Ordinance are federal/state/local public agencies, employers that provide services in healthcare operations, and veterinary services providers.  Employers covered by collective bargaining agreements that expressly waive the protections under this Ordinance are also exempt.  Employees eligible to re-employment rights under this Ordinance are those that have been employed by the employer for at least 90 days preceding notice of their lay-off, and who were part of a lay-off event affecting at least 10 employees within a 30-day period beginning February 25, 2020.  A covered Lay-off, as defined by this Ordinance, must have been due to the employer’s lack of funds or lack of work due to the state’s or city’s public health emergency orders and/or Shelter in Place Orders, including the employer’s closure or cessation of business activity in the City.

Where an employer has implemented a Lay-off after February 25, 2020 and seeks to hire a person into a position previously held by laid-off employees, or “substantially similar positions,” this Ordinance requires the employer to first offer the open position to previously-laid off employees, based on seniority.  Employers are not required to offer re-employment if: (1) the employer learned that the laid-off employee engaged in misconduct during his/her employment; (2) the laid-off employee accepted a severance agreement that included a general release of claims; or (3) the employer had already hired another worker before the effective date of this Ordinance.  The Ordinance prescribes in detail the method (whether by telephone, email, or mail/courier service) and timing associated with how the employer may transmit the offer of re-employment, and generally allows the employee two business days to accept the offer upon receipt.

The Ordinance has a non-discrimination and duty to accommodate provision prohibiting discrimination against an employee due to a “family care hardship,” defined as a worker who is unable to work because he or she is caring for a family member that would otherwise entitle the employee to paid sick leave, or who needs to care for a child because the child’s school or place of care is closed or unavailable.  The duty to accommodate may require modifying the employee’s work schedule, work hours, or permitting telework if feasible.  

The Back to Work Ordinance imposes various notice requirements on covered employers.  It must provide employees subject to a lay-off after 2/25/2020 of notice of the lay-off, their rights to re-employment under this Ordinance, and the telephone number/hotline operated by the Office of Economic & Workforce Development (OEWD) to receive information regarding their rights to re-employment and other resources provided by the City.  Employees who were laid off before the effective date of this Ordinance must be provided with notice of their re-employment rights under this Ordinance within 30 days of the effective date of the Ordinance.  The employer must also provide notice to the OEWD particular information pertaining to the lay-off, including the total number of laid-off employees, their job classifications, and hire/separation dates.  Employers must maintain these records for two years.  More complete information regarding this Ordinance can be found here:  

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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