First Dibs: New Ordinance Requires San Jose Employers to Offer Additional Hours “In-House” to Qualified Part-Time Employees before Hiring

by Orrick - Global Employment Law Group
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For anyone who missed it, on Monday, March 14th the “Opportunity to Work Ordinance” (the “Ordinance”) went into effect in San Jose.  The Ordinance, which was approved by voters on November 8, 2016, requires employers to offer additional hours to existing part-time employees before hiring externally, either directly or through a temporary staffing agency. Employers must offer the additional hours to employees who have the skills and experience to perform the work.  Whether or not an existing employee has the requisite skill and experience is a determination left to the employer – modified only by the requirement that the employer act in good faith and with reasonable judgment.  Further, an employer need not offer an existing employee additional hours if doing so would require the employer to compensate the existing employee at time-and-a-half or any other premium rate under the law or a collective bargaining agreement. 

The Ordinance also imposes notice and recordkeeping requirements. Employers must post a notice informing employees of their rights under the Ordinance. The Office of Equality Assurance published the required notice in English, Spanish, Vietnamese and Chinese on its website.  Employers must post this notice (in each language) in a conspicuous place where employees can easily read it.

Additionally, employers must retain employee records for at least four years. The Ordinance specifically requires retention of work schedules and documentation of the offer of additional hours to existing employees for each new hire the employer makes.  Employers should also retain employment and payroll records and any other records that the Office of Equality Assurance may require.  Employers should take care to ensure its record retention policies are adequate to capture the required documentation as failure to comply will create a presumption that the employee’s account as to scheduling practices is accurate.

Employers are also prohibited from retaliating against employees who complain about violations of the Ordinance. Employers who fail to comply with the Ordinance may face administrative fines up to $50 per violation (though the first violation is expressly exempt) and potential liability in a private action by an employee, including claims for lost wages, penalties, and attorney’s fees.

What should employers do now?

  • Employers in San Jose must post notices concerning employees’ rights under the Ordinance. Download the notices from the Office of Equality Assurance and post today if you have not yet done so.
  • When additional hours are available, give written notice to qualified, existing employees offering them the work first. Although the Ordinance does not specifically require written notice, the Office of Equality Assurance indicates that employers must retain copies of these written offers of additional work hours. There is no timing requirements with respect to notice, but notice should be reasonable under the circumstances.
  • Keep records relating to the Ordinance for four years. Ensure record retention policies keep schedules, payroll records, and notices for at least four years for current and past employees.

For employers not in San Jose, keep your ear to the ground about whether an “Opportunity to Work” type ordinance is coming to your city or state soon.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Global Employment Law Group | Attorney Advertising

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