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:
- Determine the number of additional hours and the skills and experience needed to perform those hours.
- Review the list of existing part-time employees and determine which have the needed skills and experience, based on the employer’s good faith and reasonable judgment. Note that while the Ordinance does not define “part time,” FAQs published by the OEA state that “full-time employment” means an employee is employed for 40 hours per week. Thus, for purposes of distributing additional hours, employers must consider all qualified employees who work fewer than 40 hours per week.
- Document which part-time employees do not have the required skills and experience.
The employer must determine how to communicate offers of additional hours, as well as the timeline and response process. According to the OEA, communication to the employer’s qualified part-time employees may include, but is not limited to, these methods:
- Posting a notice of additional hours, in a worksite location where all employees can see it. The posting should be in any languages spoken by at least five percent of the employees and should include a timeline for employee responses.
- Emailing employees regarding the additional hours.
- Meeting individually with employees to offer the hours.
- Having part-time employees indicate their interest or lack of interest in additional hours.
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.
Finally, be mindful that “day of rest” laws do not differentiate between exempt employees (such as managers) and non-exempt employees – penalties apply for both types of employees under the Labor Code. But bear in mind that if a non-exempt employee works all seven days in a workweek, special overtime rules kick in: time and a half for the first eight hours worked on the seventh consecutive day of work in a workweek, and double time for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
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.
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.