262 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com The following cities passed Covid-era right to recall ordinances, which have now expired: San Francisco,553 Carlsbad,554 and Pasadena.555 The statewide law does not preempt these local laws, so both the state and local laws must be consulted for employers with operations in these cities. 7.23.3 Employee staffing Employers throughout America generally have the discretion to staff their workforces in accordance with their own business needs, without regard for current workforce preferences. In California it’s different, or at least it is in San Francisco, San Jose, Emeryville, Los Angeles, and Berkeley. San Francisco – Formula Retailers. Before hiring new employees or using contractors or a temporary services or staffing agency to perform work in a Formula Retail Establishment, Formula Retail employers556 must first offer the additional work to existing part-time employees if: (1) the part-time employee is qualified to do the additional work, as reasonably determined by the employer, and (2) the additional work is similar to work the employee has performed for the employer.557 Further, Formula Retail employers need offer only the number of hours needed for the part-time employee to reach 35 hours of work in a week. The Formula Retail employer must deliver a written offer of the additional hours, or post the offer in a conspicuous location in the workplace where employee notices customarily appear. The part-time employees must be provided 72 hours to accept the additional hours, after which the employer may hire new employees or use contractors to work the additional hours. If a Formula Retail Establishment changes ownership, then the new Formula Retail employer, or “successor employer,” must retain for 90 days those employees of the previous Formula Retail employer—the incumbent employer—who worked for at least six months prior to the change of ownership (other than supervisory, managerial, or confidential employees) for 90 days. The successor employer must retain each eligible employee under the same terms of employment with respect to job classification, compensation, and number of work hours that governed the employee and the incumbent employer. During the 90-day retention period, an eligible employee is immune from discharge without cause. Incumbent employers must provide and the successor employer must maintain a “retention list” that includes the employee’s name, contact information, date of hire, rate of pay, average number of weekly hours during the six 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.558 San Francisco Family Friendly Workplace Ordinance. San Francisco’s Family Friendly Workplace Ordinance requires employers to provide flexible or guaranteed work arrangements 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.559 The City of San Jose has provided guidance on the enforcement of the measure on the city website.560 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 4.76.561 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.562 An “employee” is anyone who, in a calendar week,
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