Labor Laws & Part-Time Employees in San Jose
According to the Opportunity to Work Ordinance, employers in San Jose, California must offer additional work hours to existing qualified part-time employees in San Jose before hiring new employees. The Opportunity to Work Ordinance, or Measure E, passed in 2016, applies to San José employers (including private and non-profit employers) who employ at least 36 employees and who are subject to the San José Business License Tax or maintain a facility in the city. Beginning March 13, 2017, covered employers must offer existing part-time employees additional work hours before hiring new employees. “New employees” under the Ordinance include the use of subcontractors and temporary staffing services.
The city of San Jose created a “preliminary” Frequently Asked Questions document on the Ordinance that explains that a qualified employee is one who performs at least two hours of work in a calendar week for an employer within the geographic boundaries of San José and is entitled to payment of minimum wage under the California minimum wage law. The FAQ document was released on January 27, 2017 via the city's website. An employer must count both part-time and full-time qualified employees to determine whether it meets the 36-employee threshold. The FAQs explain that executive, administrative, and professional employees are not covered by the Ordinance and these employees do not count toward the 36-employee threshold. If an employer is a “Chain” business (as defined by the Ordinance) not owned by a franchisee, the number of employees is determined by the total number of employees at every location of that Chain business, regardless of whether or not it is located within the city.
The city's Office of Equality Assurance is responsible for administration and enforcement of the Ordinance. It will accept complaints of suspected violations and investigate where there appears to be a reasonable basis for the complaint. It may issue administrative citations and compliance orders, file a lawsuit, and seek reimbursement of the city's administrative costs of enforcement. An aggrieved individual also may file a lawsuit to enforce the right to be offered additional hours. The aggrieved individual who prevails may recover back pay and reasonable attorneys' fees and costs, among other remedies. Lastly, it is unlawful for an employer to retaliate against employees who assert their right to be offered additional work hours under the Ordinance. There is a rebuttable presumption of retaliation if any adverse employment action is taken within 90 days of the employee exercising a right protected under the Ordinance.
Collective Bargaining Agreements and Employer Exemptions
Under the San José Minimum Wage Ordinance, the provisions of the new Opportunity to Work Ordinance may be waived by a collective bargaining agreement (CBA). The waiver must be in a bona fide CBA and must be in clear and unambiguous terms for both the employer and employee. The Office of Equality Assurance also has the ability to grant a hardship exemption of up to 12 months for employers who have demonstrated that they have 1) undertaken, in good faith, all reasonable steps to comply with the Ordinance, and that 2) full and immediate compliance would be impracticable, impossible, or futile.
San José Employers
The Ordinance requires covered employers to retain numerous records for at least four years. Applicable records include work schedules, employment and payroll records, copies of written offers to current and former covered part-time employees for additional work hours, and any other records that demonstrate compliance.
San José employers are also well-advised to consult qualified employment counsel to ensure that they have proper procedures in place for dealing with part-time employees and the allocation of hours. To get answers to your questions about San José's Opportunity to Work Ordinance, or to discuss your specific situation, call us toll-free at (888) 500-8469 or click here to contact usregarding your case.