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

340 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com obtaining the capital or business. This third exemption applies only to relocations and terminations, not mass layoffs. To claim this exemption, the employer must give the EDD documentation under penalty of perjury. Then came Covid-19. In March 2020, Governor Gavin Newsom issued an Executive Order allowing California employers to avail themselves of the “unforeseeable business circumstances” exception to the notice requirement that previously was available only under the federal WARN act 6 . The Executive Order, effective March 4, 2020, applies throughout the declared State of Emergency and suspends Cal-WARN’s 60-day notice requirement where the triggering termination, relocation, or layoff resulted from Covid-related business circumstances that were not reasonably foreseeable at the time notice would have been required. But the Executive Order does not suspend the notice requirement entirely. Rather, employers must provide the required notice as “soon as practicable.” Thus, employers are still encouraged to send notice as soon as possible after determining that they must undertake a triggering event in response to Covid-19. Moreover, in addition to its usual contents, the notice itself must provide the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.” 13.1.3 Remedies for violation A non-complying employer is liable to each affected employee for back pay and the value of benefits lost, for a period of up to 60 days. This liability is subject to offsets for payments made by the employer as separation wages or continued benefits during the period. The employer is also subject to a civil penalty of not more than $500 for each day of the violation, but this penalty is not imposed if the employer pays the employees what is due within three weeks of the triggering event. The penalty may also be reduced if the employer can prove that it acted in good faith. Affected employees, local governments, and employee representatives may sue employers under Cal- WARN, and prevailing plaintiffs may recover attorney fees. 13.1.4 Comparing Cal-WARN with federal law Cal-WARN differs in some material respects from the federal WARN Act, creating compliance traps for employers that plan reductions in force while having only federal law in mind. Issue Federal Law California Law Employer responsible for notice The employer The company and any parent corporation ordering the reduction in force. Definition of employer Employer of 100 full-time employees or full- and part- time employees who work 40 or more hours weekly Employer of 75 full- or part-time employees at establishment (any industrial or commercial facility) during the 12 months preceding the date on which notice is required.