(September 28, 2020) With three days left to either veto or sign the remaining bills on his desk, Governor Newsom has one more Job Killer to consider – AB 3216 (Kalra).
AB 3216 would impose a “right to recall” mandate on certain industries in California (hotels, event centers, airports, etc.) – meaning employees who were laid off or furloughed as a result of COVID-19 must be hired back by the company according to seniority. The law also requires that an employee be returned to a position that the employee formerly held or for which the employee could be trained/qualified to perform. Failure to follow the prescriptive requirements of the bill, as usual could give rise to a lawsuit under the Labor Code Private Attorney General Act.
Why is this bill a Job Killer?
First, the industries to which this bill would apply are some of the hardest hit as a result of COVID. Event centers have yet to reopen, hotels are operating at limited occupancy, and airports throughout the state remain deserted. Imposing additional mandates on these struggling industries is not only punitive, it will confound their ability to get back on their feet. These companies should reopen in the safest and most efficient way necessary – which each company can decide under the existing state labor regulations.
Second, an employer doesn’t need the government’s direction to return a well-performing employee to his or her former position. The employer already is motivated to bring back an employee who knows the duties of the position and would need minimal training or assistance. However, the manner and timing of when an employer brings an employee back to work should be left to the discretion of the employer. For example, many hotels are reporting that customers are making last minute plans to travel – and booking rooms with 24-48 hours’ notice. Under AB 3216, in order to staff up for these last minute guests, an employer would have to identify senior employees, give them five days to decide to return to work before asking any other employee, and potentially train the employee for the duties of the position. How does this make sense? No employer could navigate a bizarre rule requiring a five-day notice to existing employees when the employer must staff up within 24 hours. This is like a restaurant ordering eggs from the rancher after a customer orders an omelet.
Third, AB 3216 requires an employer to recall employees to the same position or a position for which they are or “can be qualified” – meaning the employer has to train senior employees for new jobs. This adds more costs and delay to reopening – but also requires an employer to choose among employees. For example, if a hotel needs housekeepers to return to work, but there is a furloughed valet who is more senior, AB 3216 would require the employer to offer the housekeeper position to the valet and train the valet on this new job. Even if former housekeepers are available and willing to work, the employer must rehire the more senior valet.
The obstacles and confusion AB 3216 presents will delay business reopening and the hiring back of employees. Governor Newsom should veto AB 3216 and give these industries a chance to rebuild.