Jun 15, 2021 • Richard Dahl; FINDLAW/BLOGS/LAW AND DAILY LIFE

Some States and Cities Help Laid Off Workers Reclaim Former Jobs

Most workers who were laid off during the COVID-19 pandemic have few rights to reclaim their jobs.

But as businesses begin to reopen, several states and municipalities are taking steps to give some of these workers – particularly those in the hard-hit hospitality sector – first cracks at their old jobs. Part of this protectionist thinking is based on the fear that some employers may see reopening as an opportunity to weed out certain members of their staff like older workers, women, and those who would otherwise be protected by employment anti-discrimination laws.

Way back in May 2020, Los Angeles was the first to provide such protection when it passed an ordinance requiring employers to give priority to laid-off workers in the hospitality, entertainment, tourism, and travel industries. Since then, a handful of other California cities followed suit.

In April, the protections went statewide when California became the first state to pass a “right of retention” bill. That bill, signed by Gov. Gavin Newsom on April 16, requires employers in several business categories to rehire, or give priority to, workers who were laid off during the pandemic. The new law covers hotel, event center, airport hospitality, and janitorial employers with at least 50 employees.

In cases where more than one employee is qualified for a position, the nod must go to the one with the most tenure.

An Expanding Trend

At least two other states have followed California’s lead.

On May 25, Connecticut passed a law requiring employers with at least 15 employees in the restaurant, hotel, and building service sectors to give hiring preference to laid-off workers.

Most recently, on June 8, Nevada followed suit when Gov. Steve Sisolak signed legislation giving re-employment rights to laid-off workers in the gaming and tourism industries.

Several cities outside California have also passed protective ordinances. Late last year, Baltimore and Philadelphia did so, and in Minneapolis, a new ordinance giving reemployment rights to laid-off hotel and event center workers went into effect May 1.

Across the Mississippi River, Minneapolis’ sister city, St. Paul, is considering its own ordinance, and so is Chicago.

The Limits of ‘At Will’ Employees

These measures can be lifesavers for many workers. Most of the workers in the U.S. are “at will,” meaning an employer can dismiss them for any reason, so long as it is not illegal (such as firing someone because of race, religion, or sexuality, for instance). By the same token, employers have great autonomy in deciding who to rehire.

These ordinances and statutes restrict that autonomy. And for that reason, they have drawn criticism, mostly from pro-business Republicans, who say that these measures will make it more difficult for businesses who are facing enough obstacles in reopening as it is.

Republican California Assemblyman Vince Fong told the Los Angeles Times, “We should not be imposing new requirements on businesses or exposing them to even more liability, which will obstruct their rehiring and recovery. This bill works against the momentum small businesses need to help them hire and get people off unemployment as quickly as possible.”

In California, for instance, affected employers who are reopening their businesses must notify laid-off employees of new jobs by letter or email within five days of the position’s establishment and then allow five days for the former employee to accept or reject the offer. If a laid-off worker is not rehired due to a lack of qualification, the employer must provide written notice within 30 days and must include an explanation of the employer’s decision.

It’s great news, of course, that businesses and workplaces are beginning to reopen. It’s also great news that the hard times experienced by many laid-off employees may be coming to an end. No doubt the states and cities that are enacting “right to rehire” measures feel the same way, but also feel that added protections are simply fair.

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