In the November 2016 election, San Jose voters approved a ballot measure that would require employers to offer additional hours to existing part-time employees before hiring new employees. The measure, known as the Opportunity to Work Ordinance (the Ordinance), took effect March 13, 2017. Though the goal of the Ordinance is to provide part-time workers with the opportunity to work additional hours, earn higher wages, and - in some instances - become eligible for benefits, it does impose a number of new employer obligations.
The Ordinance applies to employers with 36 or more employees and that are subject to the San Jose business tax or, if exempt from the business tax, maintain a place of business in San Jose. As of March 13, covered employers must offer additional work hours to existing part-time employees before hiring new employees to work those hours. Importantly, employers are not required to offer additional hours to existing workers where those hours would cause the employee to incur overtime.
Recordkeeping and Notice Requirements
Under the Ordinance, covered employers must retain adequate records of employee work schedules and payroll records, along with copies of written offers of additional work hours, for no less than four years. Employers are also required to post a notice at the workplace that informs employees of their rights.
Enforcement of the Ordinance falls upon the Office of Equality Assurance. Failure to comply with any provision of the Ordinance may incur a fine of $50 per day, as well as back wages and interest. Additionally, individual employees may file a civil lawsuit to compel compliance.
Employers subject to the Ordinance should be sure to post the required notice in a location accessible to employees, and should ensure that adequate payroll and work schedule records are maintained. Before hiring new workers, employers should analyze (and document) the ability of existing workers to pick up additional hours and make a written offer to those employees.
For more information about the Ordinance, and to obtain the official notice required by the Ordinance, click here.