?Los Angeles recently joined Berkeley, San Francisco and Emeryville, Calif.; New York City; Philadelphia; Chicago; Seattle; Euless, Texas; and Oregon as jurisdictions that have enacted fair workweek legislation.
The Los Angeles Fair Work Week Ordinance will apply to retail businesses that have at least 300 employees worldwide, including franchises. Employees who qualify for minimum wage and perform at least two hours of work in a workweek in Los Angeles will be covered by the ordinance, which contains a host of scheduling and recordkeeping requirements. It is scheduled to go into effect on April 1.
Good-Faith Estimate
Employers will be required to provide workers with a written, good-faith estimate of their work schedule before hiring and within 10 days of a current employee’s request. Other jurisdictions have required such estimates to identify the actual days the employee will be expected to work and a narrowly tailored range of hours the employee is expected to be scheduled. The good-faith estimate will also likely require employers to identify the days the employee will not be expected to work.
Employers must notify new employees of their rights under the ordinance. If a worker’s actual work hours deviate significantly from the good-faith estimate, the ordinance is violated unless the employer has a documented, legitimate business reason that was unknown at the time the good-faith estimate was given to the worker.
Employees can request certain work hours, work times, or locations of work. Employers may accept or decline the request, provided that they notify the employee in writing of the reason for any denial.
Employers will be required to provide employees with advance notice of their work schedules at least 14 calendar days before the first day of the schedule. Notice may be provided electronically, in person, or by posting the schedule in the workplace. Any employer-initiated schedule changes, including changes to date, time, or location, that occur after notice is given must be made in writing.
Employees can decline any changes that would add work hours or additional shifts. If a worker accepts a schedule change made less than 14 calendar days before the work period, the acceptance must be in writing.
The ordinance prohibits employers from hiring new employees, including contractors and temporary employees, unless they have first offered additional work hours and shifts to current employees. Employers just need to offer these open shifts or hours to employees that are qualified to perform the available work. Employers must post a notice of available or open shifts at least 72 hours before hiring a new employee. Existing employees have 48 hours to accept the offer.
Employers may only hire new employees to meet increased demand if no current employees are qualified, if none volunteer, or if allowing current employees to take on the additional work would require the payment of overtime or other premium pay to current employees.
Premium Pay
Employers must issue premium pay whenever they change an employee’s schedule. When the schedule changes result in no loss of time or additional work time exceeding 15 minutes, the employer owes the employee one additional hour of pay at the employee’s regular rate of pay. Changes that result in a loss of work time require the employer to compensate the employee at half of the employee’s regular rate of pay for the lost work time. For example, if an employee was scheduled to work eight hours and the employer reduces this to four hours, the employee is owed premium pay equal to two hours of work.
Premium pay is not required if:
- An employee initiates the requested schedule change.
- An employee voluntarily accepts a schedule change initiated by an employer due to another employee’s scheduled absence.
- An employee accepts additional hours that were offered by the employer pursuant to the Access to Hours provision of the ordinance.
- An employee’s hours are reduced due to the employee’s violation of the law or the employer’s policies.
- The employer’s operations are compromised pursuant to law or force majeure.
- The extra hours worked require the payment of overtime.
Notably, an employee’s simply consenting to work additional hours or shifts does not exempt a covered employer from having to pay the employee schedule change premium pay. Employers are prohibited from requiring an employee to find coverage for a shift if they cannot work due to protected reasons.
Employers must give employees at least 10 hours of rest between shifts unless the employee gives written consent to be scheduled for a shift that begins less than 10 hours after the conclusion of the previous shift. When an employee consents to work a shift that starts less than 10 hours after their previous shift, they are entitled to time and a half for each shift separated by less than 10 hours. For example: If an employee works 4 p.m. to midnight on Saturday, and then accepts a shift from 8 a.m. to 4 p.m. Sunday, the employee would earn time and a half for all eight hours of the Sunday shift.
Penalties and Enforcement
The city ordinance includes penalties paid to the employee and the city for violations. Any prevailing employee will be entitled to legal or equitable relief to remedy the violation, including the payment of any minimum wages and sick time benefits unlawfully withheld, the payment of penalties in the amount of up to $120 to each employee whose rights under the ordinance were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief, and reasonable attorneys’ fees and costs. Additionally, a one-time penalty for each violation, which does not accrue daily, is allowed up to $500 per violation of each section of the ordinance.
Further, the employer will be liable to the city for a penalty of up to $50 per day that wages, predictability pay, or sick time benefits were unlawfully withheld from an employee. Additional administrative fines may be assessed for each violation, up to $500.
The provisions in the penalties section do not apply to violations of the ordinance that occur during the first 180 days after the effective date of this ordinance. During this period, employers may receive written warnings only.
Next Steps
Compliance with predictable scheduling laws provides a host of structural and cultural challenges for employers. Managers need to be trained that they are obligated to finalize, publish and distribute schedules with far more advance notice than they may be used to. Managers need to be reminded that predictable scheduling laws prohibit even minor schedule deviations. Managers who may be used to texting with employees and asking employees to cover for shifts are no longer permitted to do so without first getting an employee’s written consent.
Likewise, managers must ensure that employees leave right at the scheduled end time of their shift, even if they are busy. Allowing employees to stay more than 15 minutes after the scheduled end time, without an employee’s consent, would constitute a violation, and premium pay would be owed unless the extra hours worked require the payment of overtime.
Perhaps most difficult, managers need to understand that they simply cannot hire new employees to meet anticipated demand. Instead, they need to comply with the access to hours process or risk incurring heavy fines and penalties.
Eli Z. Freedberg is an attorney with Littler in New York City. Andy Klaben-Finegold is an attorney with Littler in Columbus, Ohio. Joy C. Rosenquist is an attorney with Littler in Sacramento, Calif. © 2023. All rights reserved. Reprinted with permission.