Cal-Peculiarities: How California Employment Law is Different 2022 Edition

256 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com this kind similarly protect service workers in the event that one city contractor replaces another. In 2008 the California Grocers Association obtained an injunction against enforcement of the Los Angeles grocery worker retention ordinance, and in 2009 the Court of Appeal, in a 2-1 decision, upheld the injunction, ruling that the ordinance is unconstitutional because it conflicts with the California Retail Food Code and is preempted by the National Labor Relations Act . 481 But then the California Supreme Court held otherwise, reversing the Court of Appeal to rule that the worker- retention ordinance was not preempted by the California Retail Food Code or the National Labor Relations Act and that the Retail Food Code did not violate equal protection . 482 T he U.S. Supreme Court declined to hear the California Grocers Association’s request to review the cas e. 483 The Legislature has followed the municipalities’ lead. As of 2016, a “successor grocery employer” must retain current grocery workers for 90 days after the “change in control” of a grocery store . 484 A t the end of the 90 days, the new employer must prepare a written performance review for each worker and “consider offering” continued employment if the worker has performed satisfactorily . 485 7.23.2 “Right to Recall” laws Shortly after the Covid-19 pandemic hit in early 2020, several California cities passed so-called “right to recall” laws. These laws require certain employers to give priority in hiring to workers laid off because of the pandemic. On April 16, 2021, the State of California passed its own right to recall la w. 486 The statewide law applies to hotels, private clubs, event centers, airport hospitality operations, airport service providers, and building services to commercial buildings including janitorial, maintenance, and security service s. 487 These employers must first offer any new positions to workers who were terminated because of the pandemic (e.g., because of a slowdown in business) . 488 T o be qualified for rehire, the worker must have worked for the employer for at least six months in the twelve months preceding January 1, 2020, and have held the same or similar position when they were laid off . 489 The obligation to offer to rehire qualified workers can survive business ownership changes, restructuring, and relocation, if the business conducts the same or similar operations using substantially the same asset s. 490 Although the law does not give allegedly aggrieved workers the right to sue in court, the law authorizes the Labor Commissioner to investigate and seek substantial damages. For example, in March 2022, the Labor Commissioner cited a Southern California resort for $3.3 million in damages and penalties for not rehiring hotel workers in compliance with California’s right-of-recall law . 491 The law’s provisions can be waived in a collective bargaining agreement, though the waiver must be express and in clear terms. The law will expire on December 31, 2024 . 492 Similar, but not identical, right to recall laws have been passed by several Calfiornia cities, including San Francisco, Los Angeles, Long Beach, and others . 493 T he statewide law does not preempt these local laws, so both the state and local laws must be consulted for employers with operations in these cities. 7.23.3 Employee staffing Employers throughout America generally have the discretion to staff their workforces in accordance with their own business needs, without regard for current workforce preferences. In California it’s different, or at least it is in San Francisco, San Jose, and Emeryville.