©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 263 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.563 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.564 Employers must also post notice of the rights created by the ordinance,565 must use a “transparent and nondiscriminatory process” to distribute hours among existing employees,566 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,567 and must preserve, for four years, employees’ work schedules and any other records required to demonstrate compliance with the ordinance.568 San Jose can address violations by issuing fines of up to $50 per violation and by seeking civil penalties in court.569 The ordinance also authorizes private actions: a person not offered work under the ordinance can sue for lost wages, penalties, and attorney fees.570 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.571 The ordinance exempts scheduling provisions contained within a collective bargaining agreement, if the CBA explicitly waives the ordinance in clear and unambiguous terms.572 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.573 Emeryville. The Fair Workweek Ordinance, effective in 2017, covers all retail and food service businesses with more than 56 employees worldwide, or 20 or more employees in Emeryville.574 Businesses must post work schedules 14 days in advance.575 Any new hours not so scheduled can be declined by the employee.576 Employers must pay extra wages for making schedule changes between one and 14 days before the shift.577 Employers cannot hire for new positions unless they have first offered the new schedules to existing employees.578 The additional hours can be divided among several existing employees as long as the employer does not discriminate among employees when dividing hours.579 Employers cannot divide up hours to avoid the benefits required under the Affordable Care Act.580 Employers must give employees at least 72 hours to accept the offer of additional work.581 If the time of additional hours needed will last less than two weeks, then the employer must give the employee at least 24 hours to accept the hours.582 The offer and the acceptance of hours must be communicated in writing, with records to be retained for at least three years.583 Employers must provide good-faith estimates of work schedules in writing before a new employee starts their employment.584 Employees can request changes to the schedule before commencing work.585 Employers must respond to employees’ requests in writing regarding schedule changes that are approved or rejected.586 New employees must be immediately given their first two weeks of scheduled work upon hire.587 The only exceptions to the Emeryville scheduling requirements are for circumstances when the employees or the place of business are threatened, when public utilities fail, or when there is an act of nature such as a natural disaster or civil unrest.588 Employee-toemployee changes are also exempt, but the employer cannot help to facilitate shift-swapping.589 Employees also have a right to decline work hours that occur within 11 hours of the end of the previous day’s shift or during the 11 hours following a shift that spanned two days. Employees who work these shifts must agree to do so in writing, and employers must pay them 1.5 times their regular rate for any hours worked with fewer than 11 hours of time off between shifts.590 Employers must post notice of employee’s rights under the ordinance.591 They
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