Bill Guaranteeing Right to Return to Work Vetoed
By Devika Sagar
Workers who were laid off during the pandemic do not have the right to return to their jobs after a bill was vetoed by Governor Gavin Newsom.
On September 30, 2020, Governor Newsom vetoed a highly union-favored bill, Assembly Bill 3216. AB 3216 would have created a right of recall for laid-off employees in many industries deeply affected by COVID-19, such as hotels and event venues and those working in building maintenance.
Marshall Anstandig, Professor of Labor Law at Santa Clara University School of Law, said this bill was very pro-employee.
“It [would’ve] create[d] potential liability for an employer who refuse[d] to comply — it [was] quite extreme,” Anstandig said.
Additionally, Anstandig said the bill included certain provisions that are not generally in labor contracts between employers and labor unions.
Anstandig said that one of the most notable aspects of AB 3216 was the requirement of employers to bring back employees they laid off which is not otherwise provided in the law. Any regular employee would not be re-hired after being laid off, unless otherwise indicated in an employment contract or labor union agreement.
Anstandig said another notable aspect of the bill involved the treatment of former employees if the business was sold during the pandemic.
“If an employer has sold this business, the successor employer, under the statute, has to comply with the notice requirements and bring someone back, which is very, very unique,” Anstandig said.
Anstandig said these terms are generally negotiated in a Collective Bargaining Agreement between employers and unions, but AB 3126 would make it a state law requirement. Newsom said in a statement that he vetoed AB 3216 because it placed too much of a burden on employers in the hospitality industry, especially during the pandemic.
Anil Yadav, a local business owner who currently employs about 14,000 employees in the hospitality and restaurant business, said the COVID-19 pandemic has “brought on many different challenges,” such as having to lay off about 35% of the workforce.
Yadav said that if AB 3216 had passed, it would be devastating for business owners because the costs of doing business would greatly increase, in addition to the escalating expenses during the pandemic. Many businesses would “have been forced to shut down if they were mandated to comply with AB 3216.”
Yadav said within his business, he has seen significantly increased costs to protect his employees, which he refers to as “front-liners” during the pandemic. These costs include compliance with improved sanitation and health requirements, masks, and gloves for all his employees, and providing extra protective measures to keep employees and customers safe.
On the other hand, the union, Unite Here, was one of the supporters for AB 3216 and described the veto as disappointing. Unite Here is based out of San Jose, California, and represents hospitality workers, including food service workers and hotel workers. Unite Here supported the bill to ensure hospitality workers, the majority of which are people of color and immigrants, can return to work after the pandemic.
Sarah McDermott, Political Director of Unite Here, said it was essential that AB 3216 passed.
“85% of Unite Here’s workers nationally are unemployed right now,” McDermott said.
McDermott said Unite Here’s official stance is that they “disagree fundamentally” with employers who believe this would place restrictions on businesses and slow down their ability to reopen up.
“It limits an employer’s ability to not hire back some of their workers who have gotten raises over the years,” McDermott said.
The push from Unite Here has not stopped at the state level, and they are continuing to fight for these employees at the local level. McDermott said AB 3216 is an opportunity for “people of color to get a chance to get back to work.”
McDermott said she is “disappointed with the lack of leadership displayed by Newsom.” Anstandig, on the other hand, believes the Governor vetoed the bill because of its “uniqueness.”
“One would hope there is a balance between labor and management,” Anstandig said. “The Governor, perhaps through lobbyists that influenced him over this bill, decided that there would be too many obligations and burdens for employers coming back from the pandemic to make this a part of the law.”
As some California restrictions are lifted, so far, Yadav has lost about 80-90% of business. He has attempted to bring back his employees that have been furloughed, but many have refused to return.
“It is a double-edged sword,” Yadav said. “The government put out a stimulus package a few months ago to support business, and the mainstream community to support the loss of jobs and income. But many employees took advantage of the situation because they were making more money staying at home than going to work, so they chose to stay home.”
Yadav said that he could rehire 500-750 employees back, but most employees have chosen not to return to work. This creates an operational challenge for many businesses in the hospitality industry.
Though the bill was vetoed at the state level, McDermott said Unite Here remains committed to helping workers at the local level by advocating for local protections. As of right now though, there is no legislative guarantee that laid-off employees in the hospitality industry can return to their jobs.
(Editor's Note: This article was originally published in the November 2020 [Volume 51, Issue 2] edition of The Advocate.)