Bill Text: CA SB627 | 2023-2024 | Regular Session | Enrolled
Bill Title: Displaced workers: notice: opportunity to transfer.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Vetoed) 2024-01-25 - Veto sustained. [SB627 Detail]
Download: California-2023-SB627-Enrolled.html
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Enrolled
September 19, 2023 |
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Passed
IN
Senate
September 14, 2023 |
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Passed
IN
Assembly
September 13, 2023 |
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Amended
IN
Assembly
September 07, 2023 |
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Amended
IN
Assembly
September 01, 2023 |
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Amended
IN
Assembly
July 12, 2023 |
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Amended
IN
Senate
April 27, 2023 |
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Amended
IN
Senate
April 17, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Senate Bill
No. 627
| Introduced by Senator Smallwood-Cuevas (Coauthor: Senator Durazo) (Coauthors: Assembly Members Kalra and Santiago) |
February 16, 2023 |
An act to add Part 9.7 (commencing with Section 2550) to Division 2 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 627, Smallwood-Cuevas.
Displaced workers: notice: opportunity to transfer.
Existing law, until December 31, 2024, requires an employer, as defined, to offer certain employees laid off due to the COVID-19 pandemic specified information about job positions that become available for which the laid-off employees are qualified, and to offer positions to those laid-off employees based on a preference system, in accordance with specified timelines and procedures. Existing law requires an employer that declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee to provide the laid-off employee a written notice within 30 days including specified reasons for the decision, and other information on those hired. Existing law prohibits an employer from taking adverse action against any laid-off employee for seeking to enforce their rights under existing law. Existing law gives the Division of
Labor Standards Enforcement jurisdiction over enforcement of these provisions and prescribes enforcement, remedies, and civil penalties for violations. Existing law prohibits the imposition of criminal penalties for a violation of these provisions. Existing law authorizes the division to promulgate and enforce rules and regulations, and issue determinations and interpretations concerning existing law.
This bill would require a chain employer to provide each covered worker and their exclusive representative, if any, a displacement notice at least 60 days before the expected date of closure of a covered establishment. The bill would define terms for its purposes, including defining a “covered establishment” as a chain establishment that is subject to closure resulting in layoffs of workers, a “chain” as a business in this state that consists of 100 or more establishments nationally that share a common brand and are owned and operated by the same parent company, and a
“chain employer” as any person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, owns or operates a chain and employs or exercises control over the wages, hours, or working conditions of workers. A “chain employer” would also include a franchisee that owns and operates 100 or more establishments nationally under an agreement with one franchisor.
This bill would require a chain employer, for a year after the closure of a covered establishment, to provide to all covered workers the opportunity to transfer to a location of the chain within 25 miles of the covered establishment subject to closure as positions become available. A franchisee subject to the bill would only be required to make an offer of transfer to a covered worker to a location within 25 miles of the covered location that the franchisee owns and operates under an agreement with one franchisor. The bill would require the chain employer to
maintain a preferential transfer list of covered workers. The bill would require a chain employer to make offers of transfer to qualified covered workers based on length of service, as specified. The bill would require a covered worker who is offered a position to be given at least 5 business days, from the date of receipt, to accept or decline the offer. The bill would require a chain employer to retain for a minimum of 3 years prescribed records relating to the closure and offers of employment. The bill would prohibit a chain employer from taking adverse action against a covered worker for asserting their rights under the bill. Under the bill, the division would have jurisdiction over enforcement of these provisions. The bill would prescribe enforcement, remedies, and civil penalties for violations. The bill would prohibit the imposition of criminal penalties for a violation of these provisions. The bill would authorize the division to promulgate and enforce rules and regulations, and issue determinations
and interpretations concerning existing law.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Part 9.7 (commencing with Section 2550) is added to Division 2 of the Labor Code, to read:PART 9.7. Displaced Worker Retention and Transfer Rights
2550.
As used in this part:(a) “Chain” means a business in this state that consists of 100 or more establishments nationally that share a common brand and are owned and operated by the same parent company.
(b) “Chain employer” means any person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, owns or operates a chain and employs or exercises control over the wages, hours, or working conditions of workers. A “chain employer” does not include a franchisee that owns and operates fewer than 100 establishments but does include a franchisee that owns and operates 100 or more
establishments nationally under an agreement with one franchisor.
(c) “Covered establishment” means a chain establishment that is subject to closure resulting in layoffs of workers.
(d) (1) “Covered worker” means any individual that meets all of the following:
(A) Whose primary place of employment is at a covered establishment subject to closure.
(B) Who is employed directly by the employer.
(C) Who has worked for the employer for at least six months before the date of the closure.
(2) “Covered worker” does not
include a managerial, supervisory, or confidential worker or a worker hired explicitly as a temporary or seasonal worker.
(e) “Displacement notice” means the written notice an employer gives to workers in advance of the closing of a covered establishment.
2551.
(a) A chain employer shall provide each covered worker and their exclusive representative, if any, a displacement notice at least 60 days before the expected date of closure of a covered establishment.(b) The displacement notice shall be given in one of the following forms to all covered workers in both English and the language understood by the majority of the workers:
(1) First class mail.
(2) Personal delivery with optional signed receipt.
(3) A notice in workers’ pay envelopes.
(4) Email and text message.
(c) The notice shall contain the following information:
(1) Name and address of the covered establishment that is subject to closure.
(2) Name, email, and telephone number of a company official to contact for more information.
(3) Expected date of closure of the covered establishment.
(4) Reason or justification for the closure of the covered establishment.
(5) Other locations of the chain within 25 miles of the covered establishment.
(6) Notice of the requirements and their rights under Section 2552.
(d) A chain employer is not required to comply with the displacement notice requirement in subdivision (a) if one of the following applies:
(1) The closure is necessitated by a physical calamity or act of war.
(2) The chain employer was actively seeking capital or business to avert the closure and the following conditions apply:
(A) The capital or business sought, if obtained, would have enabled the chain employer to avoid or postpone the closure.
(B) The chain
employer reasonably and in good faith believed that giving the notice required by subdivision (a) would have precluded the chain employer from obtaining the needed capital or business.
2552.
(a) (1) A chain employer, for one year after the closure of a covered establishment, shall provide to all covered workers the opportunity to transfer to a location of the chain within 25 miles of the covered establishment subject to closure as positions become available. Nothing in this section requires a chain employer to alter or terminate the employment of any worker, fail to promote any worker, or displace any worker where the opportunity to transfer is offered.(2) The chain employer shall maintain a preferential transfer list of covered workers that reflects their date of hire and position at the time of the closure. The chain employer shall
make offers of transfer to covered workers in order of greatest length of service based on the worker’s date of hire at the chain.
(3) Within five business days of a position becoming available at an establishment of the chain that is within 25 miles of the covered establishment, a chain employer shall offer covered workers all available positions for which the covered workers are qualified. A covered worker is qualified for a position if the worker held the same or similar position at the covered establishment at
the time of the closure. A chain employer may make simultaneous, conditional offers of employment to covered workers with a final offer of employment conditioned on application of the preferential transfer list.
(4) The chain employer shall make the offer or offers to covered employees in writing, either by hand or to their last known physical address, and by email and text message to the extent the employer possesses such information.
(5) A covered worker who is offered a position pursuant to this section shall be given at least five business days, from the date of receipt, in which to accept or decline the offer. A “business day” is any day except Saturday, Sunday, or any official state holiday.
(6) A
chain employer shall retain the following records for at least three years, commencing on the date of the written notice regarding the closure, for each covered worker: the worker’s full legal name; the worker’s job classification at the time of separation from employment; the worker’s date of hire; the worker’s last known address of residence; the worker’s last known email address; the worker’s last known telephone number; and a copy of the written notices regarding the closure provided to the worker and all records of communications between the employer and the worker concerning offers of employment made to the worker pursuant to this section.
(7) A transfer shall be considered complete when the covered worker accepts the offer of employment.
(8) A chain employer that is a
franchisee that owns or operates 100 or more establishments nationally shall only be required to make an offer of transfer to a covered worker to a location within 25 miles of the covered location that the franchisee owns and operates under an agreement with one franchisor.
(b) A chain employer shall not refuse to employ, terminate, reduce in compensation, or otherwise take any adverse action against any covered worker for seeking to enforce their rights under this section, for participating in proceedings related to this section, opposing any practice proscribed by this section, or otherwise asserting rights under this section. This subdivision shall also apply to any covered worker who mistakenly, but in good faith, alleges noncompliance with this section.
(c) The Division of
Labor Standards Enforcement shall have exclusive jurisdiction to enforce this section. This section may be enforced only as follows:
(1) A covered worker may file a complaint with the Division of Labor Standards Enforcement for violations of this section and may be awarded any or all of the following, as appropriate:
(A) Transfer and reinstatement rights pursuant to this section.
(B) Front pay or back pay for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the highest of any of the following rates:
(i) The average regular rate of pay received by the covered worker during the last three years of
that worker’s employment in the same occupation classification.
(ii) The most recent regular rate received by the covered worker while employed by the chain employer.
(iii) The regular rate received by a worker occupying the position in place of the covered worker that should have been employed.
(C) Value of the benefits the covered worker would have received under the chain employer’s benefit plan.
(2) No criminal penalties shall be imposed for violation of this section.
(3) Any chain employer, agent of the employer, or other person who violates or causes a violation of this section shall be
subject to a civil penalty of one hundred dollars ($100) for each worker whose rights under these provisions are violated and an additional sum payable as liquidated damages in the amount of five hundred dollars ($500), per worker, for each day the rights of a worker under this section are violated and continuing until such time as the violation is cured, which shall be recovered by the Labor Commissioner, deposited into the Labor and Workforce Development Fund, and paid, upon appropriation by the Legislature, to the worker as compensatory damages.
(4) The Labor Commissioner shall enforce this section, including investigating an alleged violation and ordering appropriate temporary relief to mitigate the violation pending the completion of a full investigation or hearing, through the procedures set forth in Section 98.3, 98.7, 98.74, or
1197.1, including by issuance of a citation against an employer who violates this section and by filing a civil action. If a citation is issued, the procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Labor Commissioner shall be the same as those set out in Section 98.74 or 1197.1, as appropriate.
(5) In an action brought by the Labor Commissioner for enforcement of this section, the court may issue preliminary and permanent injunctive relief to vindicate the rights of workers.
(6) In an administrative or civil action brought under this section, the Labor Commissioner or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil
Code.
(7) The remedies, penalties, and procedures provided under this section are cumulative.
(d) The Division of Labor Standards Enforcement may promulgate and enforce rules and regulations, and issue determinations and interpretations, consistent with and necessary for the implementation of this section. Those rules and regulations, determinations, and interpretations shall have the force of law and may be relied upon by employers, workers, and other persons to determine their rights and responsibilities under this section.
