Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to, that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least 2 weeks notice of their schedules. The bill would require a food and general retail establishment to pay those employees additional pay, as specified, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishments control. The bill would also require a food and general retail establishment to allow an employee to, upon request, be absent from work without pay for up to 8 hours twice a year to attend any required appointments at the county human services agency, provided that the employee gives reasonable advance notice to the employer of his or her intention to take time off, unless advance notice is not feasible. The bill would prohibit an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee provides specified documentation from the county human services agency. The bill would require the Labor Commissioner to promulgate all regulations and rules of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to, that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least 2 weeks notice of their schedules. The bill would require a food and general retail establishment to pay those employees additional pay, as specified, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishments control. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer a food and general retail establishment to allow an employee to, upon request, be absent from work without pay for up to 8 hours twice a year to attend any required appointments at the county human services agency, provided that the employee gives reasonable advance notice to the employer of his or her intention to take time off, unless advance notice is not feasible. The bill would prohibit an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee provides specified documentation from the county human services agency. The bill would require the Labor Commissioner to promulgate all regulations and rules of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to, that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least 2 weeks notice of their schedules. The bill would require a food and general retail establishment to pay those employees additional pay, as specified, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishments control. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer to allow an employee to, upon request, be absent from work without pay for up to 8 hours twice a year to attend any required appointments at the county human services agency, provided that the employee gives reasonable advance notice to the employer of his or her intention to take time off, unless advance notice is not feasible. The bill would prohibit an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee provides specified documentation from the county human services agency. The bill would require the Labor Commissioner to promulgate all regulations and rules of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to, that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least two 2 weeks notice of their schedules. The bill would require a food and general retail establishment to pay those employees additional pay, as specified, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishments control. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer to allow such an employee to, upon request, be absent from work without pay for up to 8 hours twice a year to attend any required appointments at the county human services agency, provided that the employee gives reasonable advance notice to the employer of the planned absence from work prior to taking time off of work. his or her intention to take time off, unless advance notice is not feasible. The bill would prohibit an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee provides specified documentation from the county human services agency. The bill would require the Labor Commissioner to promulgate all regulations and rules of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to to, that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least two weeks notice of their schedules. The bill would require a food and general retail establishment to pay those employees additional pay, as specified, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishments control. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer to allow such an employee to, upon request, be absent from work without pay for up to 8 hours twice a year to attend any required appointments at the county human services agency, provided that the employee gives reasonable notice to the employer of the planned absence from work prior to taking time off of work. The bill would require the Labor Commissioner to promulgate all regulations and rules of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least two weeks weeks notice of their schedules, and schedules. The bill would require a food and general retail establishment to pay those employees to receive additional pay, as specified, if those employees do not receive at least two weeks notice of their work schedule. for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishments control. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer to allow such an employee to, upon request, be absent from work without pay to attend any required appointments at the county human services agency, provided that the employee gives reasonable notice to the employer of the planned absence from work prior to taking time off of work. The bill would require the Labor Commissioner to promulgate all regulations and rules or of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with Californias version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to that the employment, offer of employment, or work activity does not provide workers compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at least two weeks notice of their schedules, and would require those employees to receive additional pay, as specified, if those employees do not receive at least two weeks notice of their work schedule. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer to allow such an employee to, upon request, be absent from work without pay to attend any required appointments at the county human services agency, provided that the employee gives reasonable notice to the employer of the planned absence from work prior to taking time off of work. The bill would require the Labor Commissioner to promulgate all regulations and rules or practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law, with certain exceptions, establishes 8 hours as a days work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments.

ASSEMBLY THIRD READING

ATR Bill Id:AB 357

Author:(Chiu and Weber)

As Amended Ver:June 1, 2015

Majority vote

SUMMARY: Enacts the Fair Scheduling Act of 2015 to provide predictable work schedules to covered employees, as specified, in addition to other requirements. Specifically, this bill:

1. Requires a "food and general retail establishment" to provide its employees with at least two weeks' notice of their work schedules.

2. Defines "merchandise" to mean material goods or consumables.

3. Defines a "food and general retail establishment" to mean a retail sales establishment that has a physical location with in-person sales of food or merchandise to ultimate consumers for personal, family, or householder purposes, including, but not limited to, a food retail store, a grocery store, a general merchandise store, a department store, and a health and personal care store, meets all of the following:

   1. Has 500 or more employees in this state.

   2. Has 10 or more other such retail sales establishments located in the United States.

   3. Maintains two or more of the following:

      1. A standardized array of merchandise.

      2. A standardized facade.

      3. A standardized decor and color scheme.

      4. Uniform apparel.

      5. Standardized signage.

      6. A trademark or a service mark.

4. Excludes from the definition of "food and general retail establishment" a retail establishment where the provision of customer service is the primary activity of the establishment and any sale of merchandise is secondary or incidental to that service, an online retailer that does not have a physical location with in-person sales in this state, a franchise that does not meet the aforementioned criteria, or a new motor vehicle dealer.

5. Provides that this requirement does not apply to specified employees who are exempt from the payment of overtime under existing law.

6. Provides that a food and general retail establishment shall provide an employee with the following compensation, per shift, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels, and each previously unscheduled shift that the food and general retail establishment requires an employee to work:

   1. One hour of pay at the employee's regular hourly rate if less than seven days' notice but at least 24 hours' notice is given to the employee.

   2. Two hours of pay at the employee's regular hourly rate for each shift of four hours or less if less than 24 hours' notice is given to the employee.

   3. Four hours of pay at the employee's regular hourly rate for each shift of more than four hours if less than 24 hours' notice is given to the employee.

7. Provides that the aforementioned compensation requirement shall not apply for shifts for which the employee is compensated with reporting time pay as required by any wage order of the Industrial Welfare Commission.

8. Provides that the aforementioned compensation requirement shall not apply to changes in the scheduling of rest periods, recovery periods, or meal periods.

9. Requires a food and general retail establishment to provide an employee with the following compensation for each on-call shift for which the employee is required to be available but is not called in to work:

   1. Two hours of pay at the employee's regular hourly rate for each on-call shift of four hours or less.

   2. Four hours of pay at the employee's regular hourly rate for each on-call shift of more than four hours.

10. Provides that the aforementioned compensation requirement related to on-call time shall not apply to on-call time that is required to be compensated as hours worked for which the employee is in fact compensated under existing law.

11. Establishes exceptions to these compensation requirements under any of the following circumstances:

    1. Operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.

    2. Operations cannot begin or continue because public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system.

    3. Operations cannot begin or continue due to an act of God or other cause not within the food and general retail establishment’s control, including, but not limited to, an earthquake or a state of emergency declared by a local government or the Governor.

    4. Another employee previously scheduled to work that shift is unable to work due to illness, vacation, or employer-provided paid or unpaid time off required by existing law when the food and general retail establishment did not receive at least seven days' notice of the other employee's absence.

    5. Another employee previously scheduled to work that shift has not reported to work on time, is fired, sent home, or told to stay at home as a disciplinary action.

    6. The food and general retail establishment requires the employee to work overtime, such as mandatory overtime.

    7. The employee trades shifts with another employee or requests from the food and general retail establishment a change in his or her shift, hours, or work schedule.

12. Requires the Labor Commissioner shall promulgate all regulations and rules of practice and procedures necessary to carry out the provisions of this bill.

13. Specifies that this bill shall not be construed to prohibit a food and general retail establishment from providing greater advance notice of an employee's work schedule or changes in an employee's work schedule than what is required by this bill.

14. Requires a food and general retail establishment to allow an employee be absent from work without pay for up to eight hours twice a year, upon request, to attend any required appointments at the county human services agency.

15. Provides that as a condition of taking such time off, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is not feasible.

16. Prohibits an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee, within a reasonable time, provides documentation to the employer documenting the required appointment.

17. Prohibits sanctions from being applied upon a recipient of The California Work Opportunity and Responsibility to Kids (CalWORKs) for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

18. Makes other related and conforming changes.

19. Contains legislative findings and declarations.

FISCAL EFFECT: According to the Assembly Appropriations Committee, estimating the number of wage and retaliation claims the Department of Industrial Relations (DIR) will receive is difficult to predict. Based on the number of businesses and employees affected by this bill, DIR estimates costs in the range of $1 million to $2.8 million (Labor Enforcement and Compliance Fund) to cover personnel costs associated with processing claims. Recent data suggest there are approximately 2,465 employers with 500 or more employees in California, though not all are "food or general retail establishments."

COMMENTS: According to the author, unpredictable scheduling practices and last-minute work schedule changes cause workers who are already struggling with low wages to live in a constant state of insecurity about when they will work or how much they will be paid on any given day. Therefore, this bill will provide food and retail workers in California with the right to schedule predictability and protect workers in a number of important ways.

This bill would enact the Fair Scheduling Act of 2015, and is based on an ordinance recently enacted in San Francisco.

This bill is co-sponsored by the United Food and Commercial Workers Western States Council and the Western Center on Law and Poverty. They argue that unpredictable scheduling practices and last-minute work schedule changes cause workers who are already struggling with low wages to live in a constant state of insecurity about when they will work or how much they will be paid on any given day. The instability of day-by-day scheduling not only makes it difficult for employees to plan their finances, it also makes it difficult to secure and maintain child care and contributes to parental stress, family instability, and has been documented as resulting in poor school performance among these workers' children.

A coalition of employers, including the California Chamber of Commerce and the California Retailers Association, opposes this measure and argues that it represents a one-size fits all mandate on only California retailers, will significantly increase such employers cost of doing business, and will limit their opportunity to provide flexibility to employees as well as offer additional hours of work, as doing so will expose the employer to litigation and statutory penalties.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0000574

Date of Hearing: May 13, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 357

Author:(Chiu) – As Amended Ver:May 1, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill enacts the Fair Scheduling Act of 2015 to provide predictable work schedules to covered employees, as specified, in addition to other requirements. Specifically, this bill:

1. Requires a "food and general retail establishment" to provide its employees with at least two weeks' notice of their work schedules.

2. Defines a “food and general retail establishment” to mean a retail sales establishment that has a physical location with in-person sales, including, but not limited to, a food retail store, a grocery store, a general merchandise store, a department store, or a health and personal care store, and meets all of the following:

   1. Has 500 or more employees in this state and has 10 or more other such retail sales establishments located in the United States.

   2. Maintains two or more of the following: a standardized array of merchandise; a standardized façade; a standardized decor and color scheme; uniform apparel; or standardized signage and a trademark or a service mark.

3. Excludes from the definition of "food and general retail establishment" an online retailer that does not have a physical location with in-person sales in this state, or a franchise that does not meet the criteria specified in (2).

4. Provides that this requirement does not apply to specified employees who are exempt from the payment of overtime under existing law.

5. Provides that a food and general retail establishment shall provide an employee with specific compensation, per shift, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels, and each previously unscheduled shift that the food and general retail establishment requires an employee to work. However, it provides that this compensation requirement shall not apply for shifts for which the employee is compensated with reporting time pay as required by any wage order or to changes in the scheduling of rest periods, recovery periods, or meal periods.

6. Requires a food and general retail establishment to provide an employee with the following compensation for each on-call shift for which the employee is required to be available but is not called in to work. However it provides that this compensation requirement related to on-call time shall not apply to on-call time that is required to be compensated as hours worked for which the employee is in fact compensated under existing law.

7. Establishes exceptions to these compensation requirements under any of the following circumstances.

8. Requires a food and general retail establishment to allow an employee to be absent from work without pay for up to eight hours twice a year, upon request, to attend any required appointments at the county human services agency. Requires the employee to provide reasonable advanced notice of intent to take time off. Prohibits an employer from taking any action against the employee if that employee, within a reasonable time, provides documentation to the employer from the county human services agency documenting the required appointment.

9. Requires the Labor Commissioner to promulgate all regulations and rules of practice and procedures necessary to carry out the provisions the bill, as specified.

FISCAL EFFECT:

Estimating the number of wage and retaliation claims the Department of Industrial Relations (DIR) will receive is difficult to predict. Based on the number of businesses and employees affected by this bill, DIR estimates costs in the range of $1 million to $2.8 million (Labor Enforcement and Compliance Fund) to cover personnel costs associated with processing claims.

COMMENTS:

1. Purpose. According to the findings of the bill, unpredictable scheduling practices and last-minute work schedule changes cause workers who are already struggling with low wages to live in a constant state of insecurity about when they will work or how much they will earn on any given day. These practices also make it hard for employees to plan their finances and to plan for and obtain child care. These practices also prevent part-time employees from pursuing educational opportunities or holding a second or third job that those workers may need to make ends meet.

Western Center on Law and Poverty and the United Food and Commercial Workers Western States Council are co-sponsoring this bill to provide stability for workers by requiring that employees receive two-weeks advance notice of their work schedule, are paid for shifts that are cancelled with little notice, and are accommodated when they request unpaid time off to attend to any required appointments necessary to apply for or maintain eligibility for government assistance. AB 357 will apply to food retail grocery, general merchandise, department and health and personal care employers with 500 or more employees in California and 10 or more stores located in the United States.

According to data provided by the sponsor, the bill appears to impact approximately 8,276 employer locations (stores) and an estimated 1,004,394 employees. This represents 6% of the total employment in the state. These numbers do not include corporate owned restaurants as Employment Development Data does not distinguish between corporate owned, privately owned or franchises. This bill does not apply to franchises but does apply to certain corporate owned businesses. For example, In and Out Burgers is a corporate owned company that has over 10 locations in California and over 3,000 employees and would be subject to the requirements of this bill.

2. Opposition. A coalition of employers, including the California Chamber of Commerce and the California Retailers Association, opposes this measure and argues that it will significantly increase employers cost of doing business and will limit their opportunity to provide flexibility to employees as well as offer additional hours of work, as doing so will expose the employer to litigation and statutory penalties.

The opponents note that in December 2014, the San Francisco Board of Supervisors passed the “Retail Workers Bill of Rights” that included a “fair scheduling” mandate, similar to that proposed in this bill. The ordinance will not go into effect until July 3, 2015. They state that San Francisco has yet to see the consequences from the impact of its local ordinance mandating penalties for schedule changes and believe the bill is premature.

Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081

Date of Hearing: April 22, 2015

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Roger Hernández, Chair

ABPCA Bill Id:AB 357

Author:Chiu – As Amended Ver:April 16, 2015

SUBJECT: Employment: work hours: Fair Scheduling Act of 2015

SUMMARY: Enacts the Fair Scheduling Act of 2015 to provide predictable work schedules to covered employees, as specified, in addition to other requirements. Specifically, this bill:

1. Requires a "food and general retail establishment" to provide its employees with at least two weeks' notice of their work schedules.

2. Defines a “food and general retail establishment” to mean a retail sales establishment that has a physical location with in-person sales, including, but not limited to, a food retail store, a grocery store, a general merchandise store, a department store, and a health and personal care store, meets all of the following:

   1. Has 500 or more employees in this state.

   2. Has 10 or more other such retail sales establishments located in the United States.

   3. Maintains two or more of the following:

      1. A standardized array of merchandise.

      2. A standardized facade.

      3. A standardized decor and color scheme.

      4. Uniform apparel.

      5. Standardized signage.

      6. A trademark or a service mark.

3. Excludes from the definition of "food and general retail establishment" an online retailer that does not have a physical location with in-person sales in this state, or a franchise that does not meet the aforementioned criteria.

4. Provides that this requirement does not apply to specified employees who are exempt from the payment of overtime under existing law.

5. Provides that a food and general retail establishment shall provide an employee with the following compensation, per shift, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels, and each previously unscheduled shift that the food and general retail establishment requires an employee to work:

   1. One hour of pay at the employee’s regular hourly rate if less than seven days’ notice but at least 24 hours’ notice is given to the employee.

   2. Two hours of pay at the employee’s regular hourly rate for each shift of four hours or less if less than 24 hours’ notice is given to the employee.

   3. Four hours of pay at the employee’s regular hourly rate for each shift of more than four hours if less than 24 hours’ notice is given to the employee.

6. Provides that the aforementioned compensation requirement shall not apply for shifts for which the employee is compensated with reporting time pay as required by any wage order of the Industrial Welfare Commission.

7. Provides that the aforementioned compensation requirement shall not apply to changes in the scheduling of rest periods, recovery periods, or meal periods.

8. Requires a food and general retail establishment to provide an employee with the following compensation for each on-call shift for which the employee is required to be available but is not called in to work:

   1. Two hours of pay at the employee’s regular hourly rate for each on-call shift of four hours or less.

   2. Four hours of pay at the employee’s regular hourly rate for each on-call shift of more than four hours.

9. Provides that the aforementioned compensation requirement related to on-call time shall not apply to on-call time that is required to be compensated as hours worked for which the employee is in fact compensated under existing law.

10. Establishes exceptions to these compensation requirements under any of the following circumstances:

    1. Operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.

    2. Operations cannot begin or continue because public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system.

    3. Operations cannot begin or continue due to an act of God or other cause not within the food and general retail establishment’s control, including, but not limited to, an earthquake or a state of emergency declared by a local government or the Governor.

    4. Another employee previously scheduled to work that shift is unable to work due to illness, vacation, or employer-provided paid or unpaid time off required by existing law when the food and general retail establishment did not receive at least seven days’ notice of the other employee’s absence.

    5. Another employee previously scheduled to work that shift has not reported to work on time, is fired, sent home, or told to stay at home as a disciplinary action.

    6. The food and general retail establishment requires the employee to work overtime, such as mandatory overtime.

    7. The employee trades shifts with another employee or requests from the food and general retail establishment a change in his or her shift, hours, or work schedule.

11. Requires the Labor Commissioner shall promulgate all regulations and rules of practice and procedures necessary to carry out the provisions of this bill.

12. Specifies that this bill shall not be construed to prohibit a food and general retail establishment from providing greater advance notice of an employee’s work schedule or changes in an employee’s work schedule than what is required by this bill.

13. Prohibits a food and general retail establishment from discharging or discriminating against an employee because he or she is any of the following:

    1. A person who receives CalWORKs cash aid.

    2. A parent, guardian, or grandparent who has custody of one or more children who receive CalWORKs cash aid.

    3. A person who receives CalFresh food assistance.

14. Requires a food and general retail establishment to allow an employee be absent from work without pay for up to eight hours twice a year, upon request, to attend any required appointments at the county human services agency.

15. Provides that as a condition of taking such time off, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is not feasible.

16. Prohibits an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee, within a reasonable time, provides documentation to the employer documenting the required appointment.

17. Prohibits sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

18. Makes other related and conforming changes.

19. Contains legislative findings and declarations.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, unpredictable scheduling practices and last-minute work schedule changes cause workers who are already struggling with low wages to live in a constant state of insecurity about when they will work or how much they will be paid on any given day. Therefore, this bill will provide food and retail workers in California with the right to schedule predictability and protect workers in a number of important ways.

This bill would enact the Fair Scheduling Act of 2015, and is based on an ordinance recently enacted in San Francisco.

As an initial matter, the bill makes the following legislative finding and declarations:

• More than one-half of food and general retail store employees nationally receive their work schedules one week or less in advance.

• According to a recent survey of employees at chain stores and large stores, only 40 percent of those surveyed have consistent minimum hours per week and the vast majority of employees find out from a supervisor if they are needed for the on-call shift a mere two hours before the shift starts. Retail industry research in New York City found that more than one-half of family caregivers in the retail industry are required to be available for on-call shifts, forcing them to arrange for child or elder care at the last minute.

• Women are also more likely than men to work part time and experience unpredictability in their work schedules; one study found that women were 64 percent of the frontline part-time workforce among retail workers.

• Unpredictable scheduling practices and last-minute work schedule changes cause workers who are already struggling with low wages to live in a constant state of insecurity about when they will work or how much they will earn on any given day. These practices also make it hard for employees to plan their finances and to plan for and obtain child care. These practices also prevent part-time employees from pursuing educational opportunities or holding a second or third job that those workers may need to make ends meet.

• According to census data, since 2006, the number of “involuntary part time employees” in California nearly tripled to 1,100,000 employees. According to the federal Bureau of Labor Statistics, less than one-half of the retail workforce nationwide works full time, and the number of those working fewer than 20 hours per week has grown by 14 percent in the past decade.

• According to a survey conducted in 2014 of workers who sell food in California, the largest producer of food in the United States, they are twice as likely as the general populace to be unable to afford sufficient quantities of the food they sell or the healthy kinds of food their families need, despite the financial health of the food retail industry. According to this same survey, workers who were Black or Latino were far more likely to be sent home early with no pay, to have a shift canceled on the same day it is scheduled, to not be offered a lunch break, or not be paid for all hours worked.

• For these reasons, to ensure family and financial stability for a vast segment of California’s workforce, those employed by food and general retail establishments should be afforded some predictability and dignity in how they are scheduled to work.

Brief Background on "Unstable and Unpredictable" Work Schedules

A recent report¹ by the Center for Law and Social Policy and others states that unpredictable and unstable work scheduled leave many low-wage workers in a constant state of economic instability and personal turmoil. Unfortunately, for a growing number of employers, these scheduling practices are becoming business as usual.

The report describes the extent and scope of the problem as follows:

"With the rise of what is sometimes called “just-in-time scheduling,” managers are expected to carefully control the relationship between con­sumer demand and expenditures on wages. If customer traffic or sales seem to be lagging on a given day, the expectation is that immediate changes to workers’ hours should ensue. Just-in-time scheduling practices are part of larger trends in business practices – trends that are increasingly accepted as the norm in hourly-wage, service sector industries. These practices disproportionately affect low-income workers, who are already vulnerable financially. Just-in-time scheduling contributes to workers’ income instability, making it difficult to make ends meet; it may threaten their eligibility for government income supports; and because workers may not always be scheduled for enough hours to qualify, it may limit their eligibility to claim firm-provided benefits like health insurance and sick days. In their rush to cut costs, many corporations are adopting business practices that seriously com­promise workers’ well-being.

While workers feel pressure on their pocketbooks and strain on their home lives, front-line managers are being pressured too. In the retail indus­try, managers are often evaluated on whether they meet targets for payroll as a percentage of sales. With minimal control over sales, managers move quickly to decrease staffing levels when sales go down. In a study of low-level, non-production jobs at major US corporations in the retail, transportation, hospitality, and finan­cial services industries, researchers found that managers at all firms experienced pressure and responded by “scheduling to demand.” Across industries, employers have adopted labor strat­egies that “shift risk from the corporation onto workers, bringing with it instability in hours and income.” For example, one study found that restaurant workers could be scheduled with a start time but no end time. Workers were instead scheduled as “12 BD.” This means that a worker would arrive at work at noon and then leave when “business declined” or BD. That could be anytime and at the discretion of the management.

Employers now also have technological tools to help manipulate workers’ schedules in response to changes in demand. Recent news reports indicate an increasingly widespread use of software created by such companies as Kronos Inc. and Dayforce to “optimize schedules” by breaking them down into small increments of time and by tracking factors such as sales and (as in the case of Jamba Juice) weather patterns. In other words, the software creates schedules that cut costs, but are highly unpredictable for workers."

The same report describes the impact of scheduling changes on workers as follows:

"While paying bills and taking care of family members are high on the list of challenges that workers in lower-wage jobs experience when they are subject to erratic scheduling practices, the harm they face does not stop there. Workers experience adverse health effects, have difficulty find­ing and keeping childcare arrangements, face transportation obstacles, have trouble going back to school to advance their education, and experience considerable overall stress and strain on family life. Since their schedules fluctuate so much, they can’t predict the size of their pay­checks. Communities suffer, too, when workers can’t afford to buy groceries or other goods from neighborhood businesses. Even the employers that adopt volatile scheduling practices that contribute to these problems may face negative repercussions, as they cope with the significant expenses associated with high rates of turnover and low morale. Moreover, consumers are in­creasingly wary of spending their money at busi­nesses that treat their workers poorly. The ripple effects of unstable and unpredictable scheduling are felt in the lives of individuals, in communities, and throughout the economy…

…Such scheduling practices are more than simply inconveniences for workers. They have serious effects on individuals and families, are linked to adverse business consequences, and result in broad economic costs. Unpredictable and unsta­ble work schedules may contribute to work-family challenges and employee stress, as well as mar­ital strife and poor school performance among these workers’ children. Workers with little control over their schedules and hours struggle to arrange childcare and transportation and may have difficulty scheduling doctor’s appointments for themselves and their families, contributing to weaker health outcomes.

Because they are unable to count on a set number of hours per week, many workers simply cannot make ends meet. For these workers, despite having jobs that should ostensibly enable them to pay the bills, public assistance often becomes necessary."

ARGUMENTS IN SUPPORT

This bill is co-sponsored by the United Food and Commercial Workers Western States Council and the Western Center on Law and Poverty. They make the following arguments, among others, in support of this bill:

"Status Quo Scheduling Allows Employers to Exploit Worker’s Unpaid Time - More than half of food and general retail store employees nationally receive their work schedules one week or less in advance. According to a recent survey of employees at large retail and grocery stores, only 40% of those surveyed have consistent minimum hours per week and the vast majority of employees find out from a supervisor if they are needed for the on-call shift a mere two hours before the shift starts. Spending unpaid time in limbo, pending a call from her employer, low-wage workers are less able to spend their unpaid time freely and undermined if they wish to use the time at a second or third job or advancing their future job opportunities through vocational training or post-secondary education.

Fair Scheduling Helps Parents be Accountable to Children and Family Obligations Unpredictable scheduling practices and last-minute work schedule changes cause workers who are already struggling with low wages to live in a constant state of insecurity about when they will work or how much they will be paid on any given day. The instability of day-by-day scheduling not only makes it difficult for employees to plan their finances, it also makes it difficult to secure and maintain child care and contributes to parental stress, family instability, and has been documented as resulting in poor school performance among these workers’ children…

Fair Scheduling Helps Workers Keep Child Care Placements & Their Children Get AheadAccording to a report by Child Care Aware America, the average cost of full-time childcare ranges from $4,000 to $1600 annually per child. The National Women’s Law Center (NWLC) says that there is only one child care slot for every child who needs on. If an hourly wage earner is fortunate enough to secure a placement at a child care provider, last minute changes in work schedules can put that placement at risk…

Fair Scheduling Supports Work and Earnings - During recent legislative debates, opponents to legislation that would raise the wage claimed that increasing the wage by a dollar increment would not change the life conditions of workers who lived below the poverty line and that the debate over the wage increase was misplaced. Instead, they argued, that we should focus on how to help workers advance to better jobs. Without fair scheduling, low-income workers are stuck with their current job and wage. They are less able to pursue vocational or post-secondary education or to pursue opportunities to earn more money through self-employment or a second job. Instead, erratic and unpredictable schedules contribute to wage instability, which leads workers

While some in the business community may argue that this policy change is an overreach, researchers have documented the business case for schedule fairness policies. In fact, several large retail and food employers have voluntarily begun moving to a 2-week fair scheduling policy. However, employees should not have to depend on the voluntary decisions of their employer(s) in order to be afforded the very necessary right of having advance notification of their schedule and compensation for last minute changes. If this policy change is possible, and recent announcements prove that it is, then it should be required so that workers can depend on a job-market that empowers them to manage their family and community obligations and to pay their bills.

Fair Scheduling Protects Women and Minorities from Disparate Treatment - Women and workers of color are more likely to be low-wage hourly workers and they are more likely to be impacted by scheduling abuses. Research shows that Black and Latino workers work more shift-work and also experience more cancelled and shortened shifts than their white counterparts. These policies contribute to the fact that black men with full time jobs are paid just 76.3 cents for every dollar their white counterparts receive; for black women, the figure is 84.6 cents for every dollar a white woman is paid. Lack of ability to plan ahead also prevents full time work, contributing to the doubling of women workers who are employed part-time though desiring full-time work since the recession."

With respect to the portion of the bill dealing with public assistance, the Western Center on Law and Poverty argues that fair scheduling can protect workers when they are forced to apply for public assistance. When workers income falls short, or when they fall out of the job market due to inability to find childcare or transportation to comply with on-call work demands, they are often forced to seek food or basic needs assistance through California’s safety-net programs. In fact, according to the Center on Budget and Policy Priorities, 40 percent of California’s food stamp recipients live in working families. Ironically, these workers face additional barriers of finding time to apply and certify their eligibility for the federal food benefits they are entitled to as low-income Americans because of their inability to schedule unpaid time off to attend to the paperwork and requisite interviews. In fact, California, with more poor workers eligible for food stamps than any other state, also ranks the lowest in the percent of eligible poor workers receiving these federally funded benefits.

ARGUMENTS IN OPPOSITION

A coalition of employers, including the California Chamber of Commerce and the California Retailers Association, opposes this measure and argues that it represents a one-size fits all mandate on only California retailers, will significantly increase such employers cost of doing business, and will limit their opportunity to provide flexibility to employees as well as offer additional hours of work, as doing so will expose the employer to litigation and statutory penalties.

Opponents argue that this bill creates significant layering of penalties against employers for schedule changes. They state that although the bill provides limited exceptions to the application of these penalties for schedule changes, such as when operations cannot begin due to an Act of God or utilities are not working, the scope of when the penalties will apply is significant. They contend that employers are already faced with significant penalties, mandated additional compensation, and higher minimum wage rates. This bill would layer more penalties on an employer who is already compensating the employee for schedule changes, as well as hours worked. Financially punishing an employer for responding to last minute business demands or, worse, for offering an employee more hours of work is unfair and penalizes the employer just as much as employees.

Opponents also argue that this bill creates ambiguity regarding "required" versus "voluntary" employee schedule changes. As they state:

"[This bill] states that an employer shall pay an employee penalties for unscheduled changes the employer “requires” an employee to work. The term “requires” is ambiguous as to whether it includes only those schedule changes that (1) the employer actually mandates the employee to work or suffer adverse employment action; or (2) a schedule change that the employer offers the employee, and the employee individually feels pressured or compelled to work and therefore consents. For example, if an employer suggests it really needs additional help to cover a shift at a restaurant as a large of customers has just arrived and is the employee available to come in, is that enough to satisfy the “required” element of [this bill]?

Ambiguity regarding similar terminology such as “provides” has created more than a decade of significant litigation for California only employers regarding the triggering of additional compensation for employees with regard to meal periods and is therefore an important distinction. See Brinker Restaurant Corporation v. Superior Court, 53 Cal.4th 1004 1039 (2012) (defining “provide” to mean a reasonable opportunity for an employee to take a 30-minute uninterrupted meal period that is not discouraged or impeded by the employer)."

On a related point, they argue that this bill discourages employers from offering additional work to part-time employees:

"Under [this bill], if additional hours of work become available after an employer has issued the schedule, and the employer offers that additional work to a part-time employee, [this bill] penalizes the employer. Specifically, if the employee feels “required” to work the previously “unscheduled” offer of work, the employer would be forced to pay the employee not only compensation for hours worked, but also an additional four hours of compensation at the employee’s “regular hourly rate.” Such a penalty discourages employers from offering additional hours of work to part-time employees, thereby ultimately harming employees who are working part-time."

Opponents also object to provisions of the bill that they contend creates a new, protected classification of employees. Under this bill, an employer would be prohibited from discriminating against or discharging any employee who falls within one of three protected categories. Combined with the new, unlimited leave referenced above, this precludes an employer from taking any conservative action against an employee who regularly misses work on a daily, weekly or monthly basis to attend an appointment, for threat of discrimination or retaliation litigation. In addition, they argue that there is no evidence of systematic employment discrimination against employees on this basis that would justify a new, protected classification in California law. As such, this protected classification will simply lead to an increase in litigation as it provides a new basis upon which to sue an employer who takes an adverse employment action for a legitimate reason against an employee who falls within one of these protected categories.

They also argue that this bill subjects employers to multiple threats of extensive litigation:

"In addition to litigation under PAGA, Labor Code Section 2699, an employee could also threaten an unfair competition claim under Business and Professions Code Section 17200, as well as a common law wrongful termination claim. Increasing the cost of doing business on all employers who engage in retail activity with the “additional pay” mandate, as well as subjecting them to multiple threats of litigation, is detrimental to the economy and the ability for businesses to thrive in this state.

Notably, [this bill] references the various levels of penalties for schedule changes as “compensation,” even though it is not compensating an employee for actual hours worked. This choice of term is not inconsequential, as it potentially triggers a three year statute of limitation to bring a civil action as opposed to a one-year statute of limitation for the penalty imposed. See Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) (holding premium pay for missed meal period is subject to three year statute of limitations versus one-year statute of limitations for penalties)."

Finally, opponents argue that the San Francisco ordinance has not even gone into effect yet to determine the consequences of this policy. They state that in December 2014, the San Francisco Board of Supervisors passed the “Retail Workers Bill of Rights” that included a “fair scheduling” mandate, similar to that proposed in this bill. Mayor Ed Lee did not sign this ordinance, which will not go into effect until July 3, 2015. They state that San Francisco has yet to see the consequences either intended or unintended from the impact of its local ordinance mandating penalties for schedule changes. Given this, they argue that it is premature to impose this broad and punitive measure on all “food and general retail establishments” in California, especially those areas with high unemployment rates.

COMMITTEE STAFF COMMENT

In addition to the arguments mentioned above, opponents contend that, despite the exceptions contained in the bill, employers will still be subject to liability under the Labor Code Private Attorney General Act (PAGA) for any change in employee schedules. They argue that this bill states that an employer “shall” provide no less than two weeks' notice of an employee’s schedule. Failure to provide two weeks’ notice, no matter the reason, will independently create a PAGA violation and subject the employer to a representative action. Specifically, even though this bill would not assess penalties for an employer who has to cover a shift at the last minute because another employee calls in sick or works overtime, it is still a change in an employee’s schedule with less than two weeks' notice and therefore a Labor Code violation subject to PAGA penalties. The threat of PAGA litigation will eliminate an employer’s ability to provide any flexibility to their employees and will subject the employer to penalties for accommodating requested time off, sick leave, vacation, trading of employee shifts, etc.

In response to this concern, the author has agreed to amend proposed Labor Code Section 518(h) to read as follows:

(h) The requirements in subdivision (c) and (f) shall not apply, and an employer shall not be deemed to have violated subdivision (b), under any of the following circumstances:

REGISTERED SUPPORT / OPPOSITION:

Support

9to5 National Association of Working Women, CA

American Association of University Women

American Federation of State, County and Municipal Employees

Better Opportunity Bill

California Alliance for Retired Americans

California Black Health Network

California Employment Lawyers Association

California Labor Federation, AFL-CIO

California Nurses Association

California Partnership

California Professional Firefighters

California School Employees Association

California Teachers Association

Center for Law and Social Policy

Child Care Law Center

Coalition of California Welfare Rights Organizations

Community Food and Justice Coalition

Consumer Attorneys of California

Courage Campaign

Equal Rights Advocates

Hunger Action Los Angeles

National Association of Social Workers, CA Chapter

National Council of Jewish Women

Office & Professional Employees International Union, Loca 29

Professional Association for Childhood Education

River City Food Bank

Sacramento Hunger Coalition

San Francisco Living Wage Coalition

SEIU California

St. Anthony's Foundation

Supervisor John Leopold, County of Santa Cruz

UFCW Western States Council (sponsor)

Western Center on Law and Poverty (sponsor)

Western Regional Advocacy Project

Opposition

Agricultural Council of California

Alhambra Chamber of Commerce

AutoNation

Brawley Chamber of Commerce

Building Owners and Managers Association California

California Association of Bed and Breakfast Inns

California Association of Nurseries & Garden Centers

California Attractions and Parks Association

California Bankers Association

California Business Properties Association

California Chamber of Commerce

California Employment Law Council

California Grocers Association

California Hotel and Lodging Association

California League of Food Processors

California Manufacturers and Technology Association

California Mortgage Bankers Association

California New Car Dealers Association

California Restaurant Association

California Retailers Association

California Travel Association

Camarillo Chamber of Commerce

Cerritos Regional Chamber of Commerce

Civil Justice Association of California

El Centro Chamber of Commerce and Visitors Bureau

Fairfield-Suisun City Chamber of Commerce

Fullerton Chamber of Commerce

Gateway Chambers Alliance

Goleta Valley Chamber of Commerce

Greater Fresno Area Chamber of Commerce

International Council of Shopping Centers

International Franchise Association

Irvine Chamber of Commerce

Lodi Chamber of Commerce

Monterey Peninsula Chamber of Commerce

NAIOP – Commercial Real Estate Development Association

National Association of Theatre Owners of California/Nevada

National Federation of Independent Business

North Lake Tahoe Chamber of Commerce

Orange County Business Council

Oxnard Chamber of Commerce

Palm Desert Area Chamber of Commerce

Rancho Cordova Chamber of Commerce

Redondo Beach Chamber of Commerce and Visitors Bureau

Retail Industry Leaders Association

Ripon Chamber of Commerce

San Francisco Chamber of Commerce

San Gabriel Valley Legislative Coalition of Chambers

Santa Clara Chamber of Commerce &  Convention-Visitors Bureau     

Santa Maria Valley Chamber of Commerce Visitor and Convention Bureau

Simi Valley Chamber of Commerce

South Bay Association of Chamber of Commerce

Southwest California Legislative Council

Southwest California Legislative Council

TechAmerica

The Chamber of the Santa Barbara Region

Torrance Area Chamber of Commerce

Wine Institute

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091