The City of San Jose’s new Opportunity to Work Ordinance (Measure E) took effect on March 13, 2017. The Ordinance requires employers with 36 or more employees to offer additional work hours to existing qualified part-time employees (non-exempt) before hiring new staff, although employers do not have to offer hours that would result in overtime or another premium rate. (See our January 6, 2017 Alert for more information on the Ordinance.)
The City’s Office of Equality Assurance (OEA), which enforces the Ordinance, has released Suggested Steps for Employers, which recommends a three-step process for compliance, including: 1) identifying the need for additional hours; 2) creating a process and timeline for offering additional hours opportunities; and 3) determining how to distribute the hours. Here are the details of the City’s recommendations:
When an employer has identified the need for additional hours of work to be performed, before hiring any new employees, including subcontractors or temporary staff, the employer should do the following:
The Ordinance does not set out a specific timeline for employee responses to additional hours opportunities. The FAQs make clear that there are no restrictions on the employer, although employees should be given a meaningful opportunity to respond depending on the nature and type of work to be performed. Furthermore, the FAQs highlight that the Ordinance does not tie an employer’s hands to quickly hire to serve peak demand, as there are no timing requirements on the employer to “execute the Ordinance’s primary mandate” to offer extra hours to existing employees.
The employer’s communication/offer process should be documented, and the employer must retain records of offers of additional hours. The Ordinance specifically requires that in connection with any new hire of employees or subcontractors, employers must retain for at least four years documentation of additional hours offers made to part-time employees prior to completing the hire.
Based on employee responses to the offer of additional hours, the employer must determine the best way to distribute/assign the hours to qualified existing part-timeemployees. If not all of the additional hours can be distributed to part-time employees, the employer may then hire new employees.
Poster and FAQs
In addition to the “Suggested Steps” guidance, the OEA has published an Official Opportunity to Work Notice (poster), Opportunity to Work FAQs, and Hardship Exemption Application. These documents, as well as the Suggested Steps for Employers, are available on the OEA’s website in English, Spanish, Chinese and Vietnamese.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, wage and hour class actions, trials, appeals, compliance advice and counseling. If you have questions about these developments or other workplace obligations, please contact us at (415) 464-4300 (San Francisco Office) or (310) 943-8500 (Los Angeles Office).
This Alert is published by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the Alert, and should not be considered legal advice.