Predictable incomes, stable work schedules
Today, providing employees with predictable incomes, stable work schedules, and the opportunity to work additional hours if available, is becoming a growing priority. Already, the City of San Francisco has an employees’ “Bill of Rights” law that ensures workers are given their work schedules in advance and have first access to additional work hours before new employees can be hired. On March 13, 2017, the City of San Jose, CA’s Opportunity to Work Ordinance will go into effect also requiring covered employers to offer any additional work hours to existing part-time employees before hiring any new workers. On July 1, 2017, similar laws will go into effect in Seattle, WA and Emeryville, CA.
San Jose’s Opportunity to Work Ordinance Notice
San Jose has released a mandatory workplace notice describing the most pertinent details of the Opportunity to Work law:
- the Ordinance applies to employers with 36 or more employees who are subject to the City’s Business License Tax or who maintain a facility in San Jose;
- these employers must offer additional work hours to existing employees before hiring any new employees or subcontractors, including hiring through temporary staffing services;
- the Ordinance is enforced by the City’s Office of Equality Assurance.
Employers must post the notice in the languages spoken by at least five percent of workers at any given location. We’ve created the poster in a four language format – English, Spanish, Chinese and Vietnamese.
FAQs Provide Additional Guidance
The City’s Frequently Asked Questions provide additional guidance. The threshold number of 36 is met by counting all part-time, full-time, temporary and seasonal employees. The count includes both non-exempt and exempt employees. For chain businesses, every employee of the business is counted toward the 36, whether or not employees’ work location is inside or outside of the City. Although they are counted, employers are not required to offer full-time or exempt workers extra hours. Also, employers are not required to offer any employee overtime or offer extra hours to employees at other locations of the business.
The Ordinance has two basic qualifications: (1) employers must offer extra hours to existing employees who, in the employer’s “good faith and reasonable judgment, have the skills and experience to perform the work,” and (2) employers must use a “transparent and nondiscriminatory process” to distribute the additional hours among employees. Beyond that, the Ordinance places virtually no restrictions on an employer’s ability to meet its requirements expeditiously. The City does not intend to second guess employers. An employer determines when to contact employees, when a response is required and when the work is to be performed. Also, where an employer has made a good faith attempt to comply but compliance would be impracticable, impossible or futile, the City is authorized to grant a hardship exemption of up to one year.
Recordkeeping and Posting
San Jose employers must document the offer of additional hours before every new hire and maintain employee work schedules for a period of four years. Employers can incorporate the new recordkeeping requirements into the routine payroll documentation that must be maintained in accordance with the City’s Minimum Wage Ordinance. Employers are encouraged to post the required Opportunity to Work poster if they have not already done so. Employers that fail to comply will only receive a warning for the first violation.