Scheduling ordinances: The next big employment challenge?

August 23, 2017

 

The new administration in Washington, DC came in with a promise to “deregulate,” that is to r

 

educe the amount of government regulations. At the same time, at the state and local level, there is no sign that regulation is slowing down.

With more and more local cities passing employment and workplace ordinances, we are witnessing what could be called the “municipalization” of employment law.

Recently, two cities in Northern California adopted sweeping ordinances that impact the way businesses are staffed and operated. Provided below is a brief summary of those new laws, but as always, this article does not substitute for the advice of counsel.

First up is the city of Emeryville. The city council there adopted ordinance 16-007, which became effective July 1. It applies to retail firms with 56 or more employees globally, and fast food firms with 56 or more employees globally and 20 or more employees within the Emeryville city limits.
The ordinance regulates work scheduling — before employees are hired, they must be provided a good-faith estimate, in writing, of their work schedule. Covered employers must provide employees at least two weeks’ notice of their work schedules, and if the employer wants to change the schedule with less than 14 days’ notice, the employee may refuse to work those hours.

Also, if an employer changes a schedule with less than 14 days’ notice but more than 24 hours’ notice, the employer must pay the employee one extra hour of pay. This is called “predictability pay.” The amount of predictability pay increases to four hours if a covered employer provides less than 24 hours’ notice of a schedule change.

There are some exceptions in the case of an emergency, as well as a collective bargaining exception — a union contract may waive employee rights under this ordinance.

The Emeryville ordinance also requires that a covered employer must offer additional hours of work to existing part-time employees before hiring other employees or using a temporary agency to provide staffing relief. Part-time employees must be given 72 hours to consider the offer of additional hours, before the employer may look to the outside for help.

In San Jose, a new scheduling law went into effect in March of this year — Measure E, which was a ballot initiative. The San Jose law applies to all employers with more than 35 employees that are subject to City of San Jose business tax or maintain a place of business in San Jose. There is a union collective bargaining agreement exemption.

Covered employers are required to offer new work hours to existing part-time workers before hiring from the outside. The employer is allowed to exercise good faith and reasonable judgment to determine whether a current part-time worker is qualified to perform the new work.

Unfortunately, these laws leave many questions unanswered. For example, how do the laws impact seasonal hiring needs? Do they cover the hiring of summer interns? If an employee quits, are these “new” hours that must be offered to a current worker? Also, how will disputes be resolved over whether a current employee is qualified to perform the new work? Finally, how do these laws apply to employees who work both within and outside of the city limits?

While many readers of this column may not have operations in San Jose or Emeryville, these ordinances are a possible harbinger of things to come. For example, at the state level in California, AB 5 — “The Opportunity to Work Act” — was introduced this year. That bill is modeled after the San Jose ordinance and would require California businesses that employ 10 or more workers to offer their current staff members more hours before hiring new employees or contracting out additional work.

The bill is currently “parked” in committee and likely will move no further this year. However, the author has indicated that she is committed to taking it up again in January 2018.

Scheduling laws seem to be here to stay, and future compliance likely will be a serious challenge for businesses in the Central Valley.

–Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at bsarchet@littler.com

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