Bill Text: CA AB3216 | 2019-2020 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Unemployment: rehiring and retention: state of emergency.

Spectrum: Partisan Bill (Democrat 15-0)

Status: (Vetoed) 2020-09-30 - Vetoed by Governor. [AB3216 Detail]

Download: California-2019-AB3216-Amended.html

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Amended  IN  Senate  August 20, 2020

Amended  IN  Senate  August 05, 2020

Amended  IN  Senate  July 16, 2020

Amended  IN  Assembly  June 04, 2020

Amended  IN  Assembly  May 12, 2020

Amended  IN  Assembly  March 12, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 3216

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Introduced by Assembly Members Kalra and Gonzalez
(Principal coauthor: Assembly Member Bonta)
(Principal coauthors: Senators Durazo and Jackson)
(Coauthors: Assembly Members Carrillo, Chiu, Jones-Sawyer, McCarty, Reyes, Robert Rivas, Mark Stone, Ting, and Wicks)
(Coauthor: Senator Allen)

February 21, 2020

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An act to add Section 2810.8 to the Labor Code, relating to employment.

LEGISLATIVE COUNSEL'S DIGEST

AB 3216, as amended, Kalra. Unemployment: rehiring and retention: state of emergency.

Existing law governs employment relations, defines the contract of employment, and establishes the obligations of employers to their employees.

This bill would require an employer, as defined, to offer its laid-off employees 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. The bill would define the term “laid-off employee” to mean any employee who was employed by the employer for 6 months or more in the 12 months preceding the state of emergency giving rise to the application of the bill’s provisions, and whose most recent separation from active service was due to a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the state of emergency, as defined. The bill would also require an incumbent employer, within 15 days after the execution of a transfer document, to provide to the successor employer specified information pertaining to eligible employees and would require the successor employer to maintain and hire from a preferential hiring list for a specified time period. The bill would authorize an employee to enforce violations of these provisions by filing an action with the Division of Labor Standards or bringing a civil action, as specified, and would authorize various remedies, including hiring and reinstatement rights and awarding of back pay.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 2810.8 is added to the Labor Code, to read:

2810.8.

 (a) For purposes of this section:

(1) “Airport” means as any area of land or water used or intended for landing or takeoff of aircraft including appurtenant area used or intended for airport buildings, facilities, as well as rights of way together with the buildings and facilities within the State of California, excluding any military base or federally operated facility.

(2) “Airport hospitality operation” means a business that prepares, delivers, inspects, or provides any other service in connection with the preparation of, food or beverage for aircraft crew or passengers at an airport, or that provides food and beverage, retail, or other consumer goods or services to the public at an airport. The term airport hospitality operation does not include an air carrier certificated by the Federal Aviation Administration.

(3) “Airport service provider” means a business that performs, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail, including, but not limited to, the loading and unloading of property on aircraft, assistance to passengers under Part 382 (commencing with Section 382.1) of Title 14 of the Code of Federal Regulations, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal. The term “airport service provider” does not include an air carrier certificated by the Federal Aviation Administration.

(3)

(4) “Building service” means janitorial, building maintenance, or security services.

(4)

(5) “Change in control” means any sale, assignment, transfer, contribution, or other disposition of all or substantially all of the assets used in the operation of an enterprise or a discrete portion of the enterprise that continues in operation as an enterprise, or a controlling interest, including by consolidation, merger, or reorganization, of the incumbent employer or any person who controls the incumbent employer.

(5)

(6) “Eligible employee” means any individual (A) whose primary place of employment is at an enterprise subject to a change in control, (B) who is employed directly by the incumbent employer, or by an employer who has contracted with the incumbent employer to provide services at the enterprise subject to a change in control, and (C) who has worked for the incumbent employer for at least one month prior to the execution of the transfer document. “Eligible employee” does not include a managerial, supervisory, or confidential employee.

(6)

(7) “Employee” means any individual who in a particular week performs at least two hours of work for an employer.

(7)

(8) “Employer” means any person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, owns or operates an enterprise and employs or exercises control over the wages, hours, or working conditions of any employee.

(8)

(9) “Employment commencement date” means the date on which an eligible employee retained by the successor employer pursuant to this section commences work for the successor employer in exchange for benefits and compensation under the terms and conditions established by the successor employer or as required by law.

(9)

(10) “Enterprise” means a hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building service to office, retail, or other commercial buildings.

(10)

(11) “Event center” means a publicly or privately owned structure of more than 50,000 square feet or 1,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.

(11)

(12) “Hotel” means a residential building that is designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotel” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building. The number of guest rooms, or suites of rooms, shall be calculated based on the room count on the opening of the hotel or on December 31, 2019, whichever is greater.

(12)

(13) “Incumbent employer” means a person that owns, controls, or operates an enterprise subject to a change in control prior to the change in control.

(13)

(14) “Laid-off employee” means any employee who was employed by the employer for 6 months or more in the 12 months preceding the state of emergency giving rise to the application of this section, and whose most recent separation from active service was due to a public health directive, government shutdown order, lack of business, a reduction in force force, or other, other economic, nondisciplinary reason related to the state of emergency.

(14)

(15) “Length of service” means the total of all periods of time during which an employee has been in active service with the employer, including periods of time when the employee was on leave or on vacation.

(15)

(16) “Person” means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.

(17) “Private club” means a private, membership-based business or nonprofit organization that operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members. The number of guest rooms or suites of rooms shall be calculated based on the room count on the opening of the private club or on December 31, 2019, whichever is greater.

(16)

(18) “Public health emergency” means a health-related emergency declared by a local, state, or federal authority.

(17)

(19) “State of emergency” means the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state or within the territorial limits of a county, city and county, or city that was declared by the Governor pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code). “State of emergency” includes a public health emergency as defined in paragraph (16).

(18)

(20) “Successor employer” means a person that owns, controls, or operates an enterprise subject to a change in control after the change in control.

(19)

(21) “Transfer document” means the purchase agreement or other documents creating a binding agreement to effect the change in control.

(b) (1) An employer shall offer its laid-off employees in writing, to their last known physical address, and by email and text message to the extent the employer possesses such information, all job positions that become available after the effective date of this section for which the laid-off employees are qualified. A laid-off employee is qualified for a position if the employee either:

(A) Held the same or similar position at the enterprise at the time of the employee’s most recent separation from active service with the employer.

(B) Is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.

(2) The employer shall offer positions to laid-off employees in an order of preference corresponding to subparagraphs (A) and (B) of paragraph (1). If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service for the enterprise.

(3) A laid-off employee who is offered a position pursuant to this section shall be given at least 10 five business days in which to accept or decline the offer. A “business day” is any day except Saturday, Sunday, or any official state holiday. An employer may make simultaneous, conditional offers of employment to laid-off employees, with a final offer of employment conditioned on application of the priority system set forth in paragraph (2).

(4) 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 shall provide the laid-off employee a written notice within 30 days identifying those hired in lieu of that recall, along with all reasons for the decision.

(5) This section also applies in any of the following circumstances:

(A) The ownership of the employer changed after the separation from employment of a laid-off employee but the enterprise is conducting the same or similar operations as before the state of emergency.

(B) The form of organization of the employer changed after the state of emergency.

(C) Substantially all of the assets of the employer were acquired by another entity which conducts the same or similar operations using substantially the same assets.

(D) The employer relocates the operations at which a laid-off employee was employed before the state of emergency to a different location.

(c) (1) (A) The incumbent employer shall, within 15 days after the execution of a transfer document, provide to the successor employer the name, address, date of hire, and employment occupation classification of each eligible employee.

(B) The successor employer shall maintain a preferential hiring list of eligible employees identified by the incumbent employer as set forth in subparagraph (A), and shall be required to hire from that list for a period beginning upon the execution of the transfer document and continuing for six months after the enterprise is open to the public under the successor employer.

(C) If the successor employer extends an offer of employment to an eligible employee, the successor employer shall retain written verification of that offer for at least three years from the date the offer was made. The verification shall include the name, address, date of hire, and employment occupation classification of each eligible employee.

(2) (A) A successor employer shall retain each eligible employee hired pursuant to this subdivision for no fewer than 90 days following the eligible employee’s employment commencement date. During this 90-day transition employment period, eligible employees shall be employed under the terms and conditions established by the successor employer or as required by law. The successor employer shall provide eligible employees with a written offer of employment. This offer shall remain open for at least 10 five business days from the date of the offer. A successor employer may make simultaneous, conditional offers of employment to eligible employees, with a final offer of employment conditioned on application of the priority system set forth in subparagraph (B).

(B) If, within the period established in subparagraph (B) of paragraph (1) of subdivision (c), the successor employer determines that it requires fewer eligible employees than were required by the incumbent employer, the successor employer shall retain eligible employees by seniority within each job classification to the extent that comparable job classifications exist.

(C) During the 90-day transition employment period, the successor employer shall not discharge without cause an eligible employee retained pursuant to this subdivision.

(D) At the end of the 90-day transition employment period, the successor employer shall perform a written performance evaluation for each eligible employee retained pursuant to this section. If the eligible employee’s performance during the 90-day transition employment period is satisfactory, the successor employer shall consider offering the eligible employee continued employment under the terms and conditions established by the successor employer or as required by law. The successor employer shall retain a record of the written performance evaluation for a period of no fewer than three years.

(3) (A) The incumbent employer shall post written notice of the change in control at the location of the affected enterprise within five business days following the execution of the transfer document. Notice shall remain posted during any closure of the enterprise and for six months after the enterprise is open to the public under the successor employer.

(B) Notice shall include, but not be limited to, the name of the incumbent employer and its contact information, the name of the successor employer and its contact information, and the effective date of the change in control.

(C) Notice shall be posted in a conspicuous place at the enterprise so as to be readily viewed by eligible employees, other employees, and applicants for employment.

(d) No employer shall refuse to employ, terminate, reduce in compensation, or otherwise take any adverse action against any person for seeking to enforce their rights under this section by any lawful means, 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 employee who mistakenly, but in good faith, alleges noncompliance with this section.

(e) This section may be enforced as follows:

(1) An employee, including any eligible employee, may file a complaint with the Division of Labor Standards Enforcement or bring an action in the Superior Court of the State of California against the employer, or in the case of a violation of subdivision (c), incumbent employer or the successor employer, for violations of this section and may be awarded any or all of the following, as appropriate:

(A) Hiring and reinstatement rights pursuant to this section, with the 90-day transition employment period not commencing until the eligible employee’s employment commencement date with the successor employer.

(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 employee or eligible employee during the last three years of that employee’s employment in the same occupation classification.

(ii) The most recent regular rate received by the employee or eligible employee while employed by the employer, incumbent employer, or the successor employer.

(iii) The regular rate received by the individual in the position during the time that the employee or eligible employee should have been employed.

(C) Value of the benefits the employee or eligible employee would have received under the employer or successor employer’s benefit plan.

(2) Any complaint filed with the division shall be investigated as provided in subdivision (b) of Section 98.7.

(3)If an employee or eligible employee is the prevailing party in any legal action taken pursuant to this section, the court shall award reasonable attorney’s fees and costs as part of the overall costs recoverable.

(4)

(3) No criminal penalties shall be imposed for violation of this section.

(f) 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 article. Those rules and regulations, determinations and interpretations shall have the force of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this section.

(g) Nothing in this section shall prohibit a local government agency from enacting ordinances that impose greater standards than, or establish additional enforcement provisions to, those prescribed by this section. This section shall not be construed to limit a discharged employee or eligible employee’s right to bring a common law cause of action for wrongful termination.

(h) All of the provisions of this section, or any part of this section, may be waived in a valid collective bargaining agreement, but only if the waiver is explicitly set forth in that agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute or be permitted as a waiver of all or any part of the provisions of this section.

(i) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.