Do you have employees in San Jose? If so, have you taken steps to comply with San Jose’s new “Opportunity to Work Ordinance”? Effective March 8, 2017 employers in San Jose will be required to offer part-time employees additional hours before they hire any new or temporary employees.
The ordinance applies to employers that employ more than 35 employees and are subject to San Jose’s business tax. Employers can be covered even if they have 35 or fewer employees in San Jose since the ordinance counts every employee of a chain business whether or not located in San Jose. The ordinance also counts all employees of a franchisee, without regard for where the employees work. The ordinance covers employees who have worked two hours within the last calendar week or are entitled to California’s minimum wage.
Compliance with the ordinance is not entirely clear but requires:
- employers to offer qualifying employees the extra hours before looking to temporary labor solutions;
- employers to post notice to their employees about their rights under the new ordinance;
- employers to “use a transparent and non-discriminatory processes” to distribute hours among existing employees;
- employers to offer additional hours only to employees who “in the employer’s good faith and reasonable judgment, have the skills and experience to perform the work.”
The ordinance does not require employers to pay existing employees overtime and employers need not offer additional hours to employees if those hours would entitle the employee to a premium rate of pay.
The ordinance puts a substantial record retention burden on employers who must retain records for new hires that identify the employer’s efforts to first offer the additional work to existing part-time employees; preserve employee work schedules and “any other records the City requires for employers to demonstrate compliance with the ordinance” for four years. A failure to comply will result in a presumption that the employee’s account as to scheduling practices is accurate. The ordinance requires employers to display a poster outlining the rights created by the ordinance that the City’s Office of Equality Assurance has yet to publish.
The ordinance exempts an employer’s first violation, but, authorizes the City to issue administrative fines up to $50 per violation and to seek civil penalties in court for noncompliance. In addition, the ordinance authorizes a private right of action for any person not offered work under the ordinance and provides for such person’s right to recover lost wages, penalties and attorney’s fees, and provides for a rebuttable presumption of retaliation to an Employee who claims he or she suffered an adverse employment action within 90 days of complaining about a violation of the ordinance.
Compliance with this new ordinance is nuanced. If you have employees in San Jose seek the help of legal counsel to map out ways to assure compliance with this new, local law.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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