©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 263 months preceding the change in control, and occupational classification. The successor and incumbent employers must also post certain notices, and the successor employer must make employment offers to workers on the retention list based on seniority or pursuant to an existing collective bargaining agreement.532 San Francisco Family Friendly Workplace Ordinance. San Francisco’s Family Friendly Workplace Ordinance requires employers to provide flexible or guaranteed work arrangments for employees with qualifying caregiving responsibilities, unless the request poses an undue hardship to the employer. (See § 2.3.7.) San Jose. Under San Jose’s “Opportunity to Work Ordinance,” covered employers must offer part-time nonexempt employees additional work hours before hiring any new or temporary employees.533 The City of San Jose has provided guidance on the enforcement of the measure on the city website.534 The ordinance covers San Jose employers that exercise control over the wages, hours, or working conditions of any employee and are subject to San Jose’s business tax or have a business in San Jose that is exempt under state law from the tax imposed by Chapter 4.76.535 For chain businesses and franchisees, the ordinance counts all employees, including both full and part-time employees, regardless of whether they work in San Jose.536 An “employee” is anyone who, in a calendar week, works at least two hours for an employer, and who qualifies as an employee under a company’s direct or indirect control as to wages, hours, or working conditions who is entitled to minimum wage.537 A covered employer must offer incumbent employees (if they have the skill and experience to perform) extra hours of work before the employer uses temporary employees or hires new employees. Employers need not provide the additional hours if doing so would create entitlement to overtime or other premium wages.538 Employers must also post notice of the rights created by the ordinance,539 must use a “transparent and nondiscriminatory process” to distribute hours among existing employees,540 must retain records for new hires that show the employer’s efforts to first offer the additional work to existing part-time employees for a four year period,541 and must preserve, for four years, employees’ work schedules and any other records required to demonstrate compliance with the ordinance.542 San Jose can address violations by issuing fines of up to $50 per violation and by seeking civil penalties in court.543 The ordinance also authorizes private actions: a person not offered work under the ordinance can sue for lost wages, penalties, and attorney fees.544 The ordinance’s employee-friendly retaliation provision creates a rebuttable presumption that retaliation has occurred whenever employees claim that they have suffered an adverse employment action within 90 days of complaining about a violation of the ordinance.545 The ordinance exempts scheduling provisions contained within a collective bargaining agreement, if the CBA explicitly waives the ordinance in clear and unambiguous terms.546 Additionally, San Jose can exempt businesses from complying with the ordinance where the business works in good faith to comply and where compliance would be impracticable, impossible, or futile.547 Emeryville. The Fair Workweek Ordinance, effective in 2017, covers all retail and food service businesses with more than 55 employees worldwide, or 20 or more employees in Emeryville.548 Businesses must post work schedules 14 days in advance.549 Any new hours not so scheduled can be declined by the employee.550 Employers must pay extra wages for making schedule changes between one and 14 days before the shift.551 Employers cannot hire for new positions unless they have first offered the new schedules to existing employees.552 The additional hours can be divided among several existing employees as long as the employer does not discriminate among employees when dividing hours.553 Employers cannot divide up hours to avoid the benefits required under the Affordable Care Act.554 Employers must give employees at least 72 hours to accept the offer of additional work.555 If the time of additional hours needed
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