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The San Francisco Board of Supervisors recently enacted an emergency ordinance that requires certain employers to make an offer to rehire their laid-off employees before other applicants when work becomes available. The ordinance was passed by the Board on June 23, 2020, and forwarded to Mayor London Breed, who returned it to the Board without signature, allowing the ordinance to take effect 10 days following passage. The ordinance went into effect on July 3, 2020 and will remain in effect until September 2, 2020.

Reopening San Francisco city or county employers, whether for-profit or nonprofit, with 100 or more employees (regardless of location) who lay off 10 or more workers within a 30-day period in San Francisco are required to extend an offer of rehire eligible employees laid off or furloughed since February 25, 2020, the issuance date of the declaration of emergency order by Mayor Breed. The requirement applies when these employers are rehiring for positions of the same or similar classifications and employers are instructed to make reemployment offers to laid-off workers in order of seniority.

The emergency ordinance creates a right to reemployment for eligible laid-off workers if their prior employers resume business operations and seek to rehire staff. Eligible workers generally include employees who were previously employed for at least 90 days in 2019 by an employer with 100 or more employees and who suffered a layoff due to COVID-19 after the mayor declared the state of emergency on February 25, 2020.

How to extend a rehire offer

Employers must make a good faith effort to contact laid-off workers when extending an offer of rehire. All eligible laid-off workers should be contacted by phone and email. If the employer is unable to make

contact via phone or email, another attempt to contact the worker should made by certified mail or courier delivery. Specific requirements for contacting laid-off employees can be found in Section 7 of the ordinance.

Once a reemployment offer is made, it must remain open for at least two business days unless extended by both the employer and eligible worker by mutual agreement. Eligible workers must notify the employer in writing if they wish to accept the position. If the worker fails to respond within two business days, it will be considered a rejection of the offer. The employer is then permitted to offer the position to the next most senior eligible worker. Certain accommodations must be made for "family care hardships" as defined within the ordinance.

Under the ordinance, there are three circumstances in which an employer is not required to offer reemployment to a laid-off eligible worker. An employer can withhold a reemployment offer for the following reasons:

1. Misconduct — If the employer learns after the lay-off that the eligible worker engaged in any act of dishonesty, violation of the law, violation of a policy or rule of the employer or other misconduct that occurred while the worker was employed
2. Severance agreement — If the employer and worker executed a severance agreement due to a layoff between February 25, 2020 and the July 3, 2020 ordinance effective date
3. Rehire — If the employer laid off an eligible worker between February 25, 2020 and the July 3, 2020 ordinance effective date and hired another person for the laid-off worker's position within that same time period

Applicable employers must send notices to city government and employees

Applicable employers are required to report the following to the San Francisco Office of Economic and Workforce Development (OEWD) for COVID-19 layoffs due to the employer's lack of funds or lack of work for its employees, or resulting from the public health emergency and any shelter in place order:

• A Notice of Layoff when an applicable employer laid off 10 or more employees during any 30-day period since February 25, 2020. This notice should be reported by September 6, 2020 (30 days from August 7, 2020 issuance of the ordinance guidance), or within 30 days from the date of the layoff, whichever is later. A list of laid-off employees and their job classification at the time of separation, original hire date, and date of separation must be attached.
• A Notice of Reemployment Offers Made and whether or not the offers were accepted for all workers in San Francisco who received layoff notices since February 25, 2020

The notices should be sent for San Francisco location employees only by email to backtowork@sfgov.com. Note that we have requested verification of the September 6, 2020, deadline as shown on the OEWD website. A Frequently Asked Questions (FAQs) document says, instead, that the deadline is September 2, 2020.

Employers must also provide a written notice of the layoff to eligible employees in the language that the worker understands. The written notice must include the layoff's effective date; a summary of the right to reemployment under the ordinance; and the telephone number to the OEWD hotline at + 1 415 701 4817. The city does not have a template for this notice, but the employer must include all required information.

For layoffs that occurred on or after February 25, 2020, and prior to the August 7, 2020 date of guidance for the ordinance, the employer must provide the written notice to qualified employees no later than September 6, 2020. Otherwise, the notice must be given to affected workers at or before the time when the layoff becomes effective.

For more information about the "Back to Work Ordinance," eligibility, and employer obligations, see the city's website and the Frequently Asked Questions (FAQs) regarding the ordinance. Questions may be sent by email to backtowork@sfgov.org, or employers may call the OEWD hotline at +1 415 701 4817.

For more information on the city's response to COVID-19, go here.

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