Cal-Peculiarities: How California Employment Law is Different - 2023 Edition

260 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 7.22.2 Retail scheduling. Retail employers throughout America generally have the discretion to schedule their workforces in accordance with their own business needs, without regard for employee preferences. In California it’s different, or at least it’s different in San Francisco. In 2014 the San Francisco Board of Supervisors enacted two first-of-a-kind ordinances, commonly referred to as the “Retail Workers’ Bill of Rights.” These ordinances impose obligations on “Formula Retail Establishments”488 with 20 or more employees in San Francisco. Before a new employee’s first day of employment, Formula Retail employers must provide a good-faith written estimate of the employee’s expected minimum number of scheduled shifts per month, and the days and hours of those shifts. But this estimate is not a contractually binding promise.489 Formula Retail employers also must provide employees with their schedules two weeks in advance, including any on-call shifts, and must provide advance notice of any changes to the employees’ biweekly schedule (not including employee-requested sick leave, time off, shift trades, or additional shifts).490 If changes are made to the employee’s schedule with less than seven days’ notice but more than 24 hours’ notice, then the Formula Retail employer must pay one hour of pay, at the employee’s regular hourly pay, for each shift change. If changes are made with less than 24 hours’ notice, then the Formula Retail employer must pay two or four hours of “predictability pay,” depending on the duration of the shift.491 “Predictability pay”—owed in addition to any regular pay—is for employees working a shift in these circumstances: Advance Notice Length of Shift Predictability Pay Owed < 7 days but 24 hours or more Any length 1 hour < 24 hours 4 hours or less 2 hours < 24 hours > 4 hours 4 hours Further, Formula Retail Employers must treat part-time employees the same as full-time employees with respect to (1) starting hourly wage, (2) access to employer-provided paid and unpaid time off (which is prorated for parttime workers), and (3) eligibility for promotions, subject to certain qualifications.492 7.22.3 Warehouse quotas As of January 1, 2022, large employers that run California warehouse distribution centers are subject to peculiar new requirements. The Warehouse Quotas law, enacted in 2021, creates more than a dozen new sections of the Labor Code.493 The law reacts to perceived threats to employee health and safety posed by any work quota, which the new law defines as a “work standard under which an employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”494 The law applies to any entity that employs, within California, 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers.495 To counter the perceived threats, the Warehouse Quotas law creates these main provisions.

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