Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Los Angeles, California recently joined Berkeley, San Francisco and Emeryville, California; 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 only to retail businesses that have at least 300 employees worldwide (including franchises). Employees of such businesses who qualify for minimum wage and perform at least two hours of work in a workweek in the City of 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, 2023.
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. While regulations are expected to be published that will identify the information that needs to be included in the good-faith estimate, 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 within those days 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.
Right to Request Changes to Work Schedule
The ordinance provides covered employees with the right to request certain work hours, work times, or locations of work. Covered employers may accept or decline the request provided that they notify the employee, in writing, of the reason for any denial.
Advance Notice of Work Schedule
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 have the right to decline any changes that would add work hours or additional shifts that were not included in the original schedule. If a worker accepts a schedule change made less than 14 calendar days before the work period, the acceptance must be in writing.
Access to Hours for Current Employees
The ordinance prohibits covered employers from hiring new employees (including contractors and temporary employees) unless they have first offered additional work hours and shifts to current employees. Covered employers need only offer these open shifts or hours to employees that the employer reasonably determines are qualified to perform the available work. For example, if a covered employer needs a new cashier, the employer would not need to offer cashier hours to employees who have not been trained in cash handling or in the use of the employer’s point-of-sale system.
The ordinance requires employers to post a notice of available or open shifts at least 72 hours before hiring a new employee; existing employees have 48 hours following their receipt of the offer to work additional 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 for Work Schedule Changes
The ordinance requires covered employers to 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 law or of the employer’s policies;
- The employer’s operations are compromised pursuant to law or force majeure; or
- Extra hours worked require the payment of overtime.
Notably, an employee’s simply agreeing or consenting to work additional hours or shifts does not exempt a covered employer from having to pay the employee schedule change premium pay.
Additionally, employers are prohibited from requiring an employee to find coverage for a shift if they cannot work due to protected reasons.
Rest Time Between Shifts
Employers are required to 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 8 hours of the Sunday shift.
Penalties and Enforcement
The ordinance includes penalties paid both to the employee and to the City for violations of its rules. An prevailing employee will be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including, without limitation, 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 either 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 of this 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.
Compliance with predictable scheduling laws provides a host of structural and cultural challenges for covered employers. For example, 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. Similarly, 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 date, without an employee’s consent, would constitute a violation and schedule change premium pay would be owed (unless such 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.
The final ordinance can be found here: KM_224e rm 800-20220623121154 (lacity.org).