Will California Employers See an Opportunity-to-Work Law?

Local San Jose ordinance hasn’t triggered violations in the past year

By June Bell May 18, 2018
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Though some Northern California cities require employers to offer additional shifts to their part-time workers before hiring more staff, an effort to expand the measure statewide failed to gain traction.

The California Opportunity to Work Act (AB 5) would have permitted businesses with 10 or more employees to add new workers or take on temporary staff only after part-timers on their payroll had the chance to pick up extra hours.

The legislation was introduced in late 2016 by Assemblywoman Lorena Gonzalez Fletcher, D-San Diego, and died in committee in January.

Her bill was modeled on a San Jose ordinance that took effect in March 2017. Gonzalez Fletcher wanted to gauge how the San Jose law fared before trying again to move ahead with statewide legislation, a spokesman for the legislator said last year. Recent calls to her office and staff were not returned.

San Francisco also requires certain large retail chains to offer additional hours to qualified part-time staff before hiring new employees, and the East Bay city of Emeryville incorporated similar provisions into its Fair Workweek Ordinance, which took effect in July 2017.

San Jose and Emeryville officials have issued no citations or fines for violations of these local ordinances. Employers' apparent compliance in those cities suggests that statewide legislation may not be needed, particularly during a time of low unemployment.

Opposition to the Bill

"I didn't think we needed it statewide," said Michael Kalt, government affairs director for the California State Council of the Society for Human Resource Management (CalSHRM). The measure was "heavily opposed" by business groups because of the additional burdens it would have placed on employers, he said.

That's not to say that it won't eventually reappear, though. "It wouldn't be a surprise to see it get revisited in the future," said Kalt, an attorney with Wilson Turner Kosmo in San Diego.

[SHRM members-only toolkit: Complying with California Wage Payment and Hours of Work Laws]

California's unemployment rate—a record-low 4.3 percent in March—is likely playing a role in hiring practices, he added. A tight labor market means employers cannot easily add new workers for part-time shifts and therefore may have no choice but to offer additional hours to those part-timers already on the payroll.

San Jose's ordinance applies to businesses with at least 36 employees. It affects about 1,200 companies and 35,000 part-time workers in the affluent Silicon Valley area. Sixty-four percent of voters backed the ordinance, which supporters claimed would benefit low-wage part-time laborers, particularly those in the restaurant and retail industries. Violators may be required to pay back wages, offer additional hours and pay a $50 fine for each day of the violation, plus attorney fees and costs.

No Violations So Far

San Jose's Office of Equality Assurance, which educates businesses about compliance and enforcement, has investigated five complaints about alleged violations since the ordinance took effect. None were deemed valid, said Chris Hickey, the office's division manager.

In one case, a restaurant worker complained about being passed over for an open five-hour shift. No violation occurred, Hickey said, because "the business did exactly what it was supposed to do: offer the hours to existing employees." The ordinance does not specify what criteria the employer must use in choosing an employee for an open shift, but the worker who is selected must have the skills and training to do the job.

In another complaint, a restaurant line cook alleged that the business owner was hiring servers instead of offering him hours. Because the cook had a different job classification than the waitstaff, he was not eligible to pick up shifts as a server, Hickey said.

He advised employers to thoroughly document the reasons they selected a particular employee to receive additional hours or why they hired additional staff. "As long as there's some justifiable reasons made for the decision, we're fine with that," he said.

The fact that there have been so few complaints could reflect widespread compliance by employers. "Businesses want to do the right thing," Hickey said. "It's painful to hire and find qualified people who don't already have jobs."

In Emeryville, a city of about 12,000 people, the Fair Workweek Ordinance applies to businesses with 56 or more employees. They must list additional available hours on an internal website or in a conspicuous place. Workers have 24 hours to accept work that is expected to last two weeks or less.

The ordinance has triggered many calls and questions but no citations, said April Shabazz, management analyst for Emeryville's Economic Development and Housing Division. It includes provisions for predictable scheduling, which penalize employers for making shift changes without giving workers sufficient notice. 

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