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Volume XIII, Number 33

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The City of Berkeley Passed a Fair Work Week Ordinance

On December 13, 2022, the City of Berkeley passed the Fair Workweek Employment Standards Ordinance on the second reading. The ordinance will take effect in January 2023; however, it will not become operative until 2024 according to the terms of the ordinance.

Covered Employers

The ordinance applies to any employer in the City of Berkeley with 10 or more employees in the city that is:

  • primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and employs 56 or more employees globally; or

  • primarily engaged in the restaurant industry, and employs 100 or more employees globally; or

  • a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises with franchisees employing in the aggregate 100 or more employees globally; or

  •  a not-for-profit corporation organized under Section 501 of the United States Internal Revenue Code in the industries specified under subsection (a)(1), (2), and (3) and employs 100 or more employees globally.

Covered Employee

Under the ordinance covered employee is defined as a person in a calendar week who performs at least two hours of work within the geographic boundaries of the city for a covered employer and is entitled to payment of minimum wage from any employer under the state requirements and is not exempt from payment of an overtime rate of compensation.

Obligations of Covered Employers

The ordinance includes several obligations for employers pertaining to scheduling, including the following:

  • Provide each employee with a good faith estimate in writing of the employee’s work schedule. The employee may submit a written request to modify the estimated work schedule, and the covered employer in its sole discretion may accept or reject the request and shall notify the employee of the covered employer’s determination in writing prior to or on the commencement of employment.

  • Provide its employees with at least two weeks’ notice of their work schedules by doing one of the following:

(1) posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or

(2) transmitting the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace.

For new employees, a covered employer shall provide the new employee prior to or on their first day of employment with an initial work schedule. Thereafter, the covered employer shall include the new employee in an existing schedule with other employees.

  • Provide an employee written notice of any change to the employee’s posted or transmitted work schedule within 24 hours of a schedule change. This notice requirement shall not apply to any schedule changes the employee initiates.

Covered Employee Rights

Pursuant to the ordinance covered employees are provided certain rights pertaining to their schedule including the following:

  • Subject to certain exceptions, an employee has the right to decline any previously unscheduled hours that the covered employer adds to the employee’s schedule, and for which the employee has been provided advance notice of less than 14 days before the first day of any schedule.

  • Subject to certain limitations, before hiring new employees, including through temporary services or staffing agencies, a covered employer shall first offer additional hours of work to existing part-time employees.

  • Covered employees have the right to decline work hours that occur less than 11 hours after the end of the previous shift. An employee who agrees in writing to work hours less than 11 hours from the end of the previous shift shall be compensated at one and one-half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.

  • An employee has the right to request a modified work schedule, including but not limited to additional shifts or hours; changes in days of work or start and/or end times for the shift; permission to exchange shifts with other employees; limitations on availability; part-time employment; job sharing arrangements; reduction or change in work duties; or part-year employment.

Predictability Pay for Schedule Changes

Subject to certain exceptions, a covered employer shall provide an employee with the following compensation per shift for a previously scheduled shift that the covered employer adds or subtracts hours, moves to another date or time, cancels, or each previously unscheduled shift that the covered employer adds to the employee’s schedule:

(1) with less than 14 days notice, but 24 hours or more notice to the employee: one hour of predictability pay;

(2) with less than 24 hours notice to the employee, (i) When hours are canceled or reduced, four hours or the number of canceled or reduced hours in the employee’s scheduled shift, whichever is less; (ii) For additions and all other changes, one hour of predictability pay. The compensation required by this subsection shall be in addition to the employee’s regular pay for working such a shift.

Waiver through CBA

The requirements of the ordinance may be waived through a bona fide collective bargaining agreement but only if the waiver is set forth explicitly in such agreement in clear and unambiguous terms.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 357
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About this Author

Kevin Reese Employment Attorney Jackson Lewis Law Firm
Principal

Kevin D. Reese is a Principal in the San Francisco, California, office of Jackson Lewis P.C. Mr. Reese has a broad range of employment law experience where his day to day practice involves defending employers in wage and hour class action cases, and single plaintiff cases involving a variety of employment issues such as discrimination, harassment, reasonable accommodation, trade secrets, unfair competition, employee raiding, and WARN.

As an experienced litigator, Mr. Reese has handled hundreds of matters in state and federal courts, arbitration, and before...

415-796-5487
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