Berkeley, CA has enacted an ordinance that will require employers in certain industries to follow specific scheduling practices beginning Jan. 1, 2024.
The Details
Covered Employers
To be covered by the ordinance, an employer must have 10 or more employees in the city of Berkeley and be:
· Primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and employ 56 or more employees globally; or
· Primarily engaged in the restaurant industry, and employ 100 or more employees globally; or
· A franchisee primarily engaged in the retail or restaurant industries and associated with a network of franchises with franchisees employing in the aggregate 100 or more employees globally; or
· A not-for-profit corporation organized under Section 501 of the United States Internal Revenue Code in the industries specified under subsection (a)(1), (2), and (3) and employ 100 or more employees globally.
Covered Employees
To be covered by the ordinance, an employee must:
· Be entitled to the minimum wage under state law.
· Perform at least two hours of work within the geographic boundaries of the city for an employer.
· Not be exempt from payment of an overtime rate under Labor Code Section 510, and not be paid a monthly salary equivalent to at least forty hours per week at a rate of pay of twice the minimum wage required by Berkeley Municipal Code Section 13.99.040.
Good Faith Estimate
An employer must provide each employee with a good faith estimate in writing of the employee’s work schedule. The employee may submit a written request to modify the estimated work schedule, and the covered employer in its sole discretion may accept or reject the request, and must notify the employee of the covered employer’s determination in writing prior to or on commencement of employment.
A covered employer must provide its employees with at least two weeks’ notice of their work schedules by doing one of the following:
· Posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or
· Transmitting the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace.
For new employees, a covered employer must provide the new employee prior to or on
their first day of employment with an initial work schedule. Thereafter, the covered
employer must include the new employee in an existing schedule with other employees.
Note: An employee who is a victim of domestic violence or sexual violence may request that the employee's work schedule not be posted or transmitted to other employees.
Schedule Changes
A covered employer must provide an employee written notice of any change to the employee’s posted or transmitted work schedule within 24 hours of a schedule change. This notice requirement doesn’t apply to any employee-initiated schedule changes.
Right to Decline
With limited exceptions, an employee has the right to decline any previously unscheduled hours that the covered employer adds to the employee’s schedule, and for which the employee has been provided advance notice of less than 14 days before the first day of any new schedule.
Right to Additional Hours
Before hiring a new employee, the employer must first offer additional hours of work to existing part-time employee(s) who have worked for more than two weeks, if the part-time employee(s) are qualified to do the additional work, as reasonably and in good faith determined by the covered employer, and if the additional hours needed are not the same hours the part-time employee is scheduled to work. This provision shouldn’t be construed to require any employer to offer employees work hours paid at a premium rate under Labor Code Section 510 nor to prohibit any employer from offering such work hours.
A part-time employee has 24 hours to accept an offer of additional hours, after which time the covered employer may hire new employees to work the additional hours.
A part-time employee who wishes to accept the additional hours must do so in writing.
When a covered employer is required to offer additional hours to existing part-time employees, the covered employer must make the offer either in writing or by posting the offer in a conspicuous location in the workplace or electronically where notices to employees are customarily posted.
Predictability Pay
With limited exceptions, covered employers must provide an employee with the
following compensation per shift for each previously scheduled shift that the covered
employer adds or subtracts hours, moves to another date or time, cancels, or for each
previously unscheduled shift that the covered employer adds to the employee’s
schedule.
· When less than 14 days of notice but 24 hours or more of notice is given to the employee: one hour of predictability pay;
· When less than 24 hours of notice is given to the employee:
o When hours are cancelled or reduced: four hours or the number of cancelled or reduced hours in the employee’s scheduled shift, whichever is less.
o For additions and all other changes: one hour of predictability pay. The compensation required by this subsection shall be in addition to the employee’s regular pay for working such shift.
Under the ordinance, predictability pay is paid at the employee’s “regular rate of pay.” Predictability pay isn’t required in the following situations.
· Mutually agreed-upon work shift swaps or coverage arrangements among employees;
· Employee initiated voluntary shift modifications, such as voluntary requests to leave a scheduled shift prior to the end of the shift or to use sick leave, vacation leave, or other policies offered by the employer; or
· To accommodate the following transitions in shifts:
o If an employee works no more than thirty minutes past the end of a scheduled shift to complete service to a customer, provided the employee is compensated at their regular rate of pay for the additional work performed by the employee.
o An employee begins or ends their scheduled shift no more than ten minutes prior to or after the scheduled shift, provided the employee is compensated at their regular rate of pay for the additional work performed by the employee.
· When operations cannot begin or continue due to extreme acts of nature and certain other situations. See the text of the ordinance for details.
Rest Between Shifts
An employee has the right to decline work hours that occur less than 11 hours
after the end of the previous shift. An employee who agrees in writing to work hours despite this right must be compensated at one and one-half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.
Right to Request a Flexible Working Arrangement
An employee has the right to request a modified work schedule, including but not limited to additional shifts or hours; changes in days of work or start and/or end times for the shift; permission to exchange shifts with other employees; limitations on availability; part-time employment; job sharing arrangements; reduction or change in work duties; or part-year employment. An employer may accept, modify or decline the employee’s request. A covered employer must not retaliate against an employee for exercising their rights under this provision.
Notice
The city is required to publish and make available to covered employers, in English
and in other languages as provided in any implementing regulations, a notice suitable for
posting by covered employers in the workplace informing employees of their rights
under the ordinance.
Each covered employer must give written notification to each current employee,
and to each new employee at time of hire, of their rights under the ordinance. Every
covered employer must also provide each employee at the time of hire with the covered
employer’s name, address and telephone number in writing. The written notification
must be in English and other languages as provided in any implementing regulations,
and must also be posted prominently in areas at the work site where it will be seen by all employees.
Retaliation Prohibited
Employers are prohibited from taking adverse action against any employee in retaliation for exercising rights protected under the ordinance.
Next Steps
If you are a covered employer:
· Ensure compliance with the requirements of the ordinance by Jan. 1, 2024.
· Train supervisors on the ordinance.
Please contact your dedicated service professional with any questions.