San Francisco retail chain store law
San Francisco passes new law affecting retail chain stores.
On November 25, 2014, the San Francisco Board of Supervisors passed two pieces of legislation affecting retail chain stores. Both laws will take effect on July 3, 2015. They will impact businesses with 20 or more retail sales establishments worldwide and 20 or more employees in San Francisco. Contractors who provide janitorial or security services at these stores are included; non-profit and governmental employers are not.
Predictable Scheduling and Fair Treatment for Formula Retail Employees
Under this law, covered employers must provide new employees with a good faith estimate of the minimum number of scheduled shifts per month, not including on-call shifts, and the days and hours of the shifts. Employers must also give at least two weeks’ notice of work schedules, including on-call shifts. The notice must be posted in a conspicuous, readily accessible place in the workplace, or by electronic means.
If a covered employer wants to make changes to shifts, it must give notice by in-person communication, telephone, email, text, or other electronic communication. Failure to provide the required notice carries consequences. If the employer gives notice between 24 hours and less than seven days, it must compensate the affected employee with one additional hour of pay at her regular rate. Less than 24 hours’ notice results in a penalty of two additional hours of pay if the shift is up to four hours; or four additional hours of pay if the shift is more than four hours.
The law also regulates on-call shifts. If an employer requires an employee to be available but does not call him in to work, the employer must pay him compensation for that shift: two hours of pay for shifts of less than four hours; four hours of pay for shifts of four hours or more. No compensation under this law is required if the employer calls the employee in for work, or gives at least 24 hours’ notice of a cancellation or change in the on-call shift.
There are exceptions to the compensation penalties for shift changes and on-call shifts. These include when another employee is not available due to illness, vacation, or employer-provided time-off and the employee provided less than seven days’ notice; another employee has not reported to work on time or has been fired or sent home as a disciplinary action; overtime work; and when the employee trades shifts with another employee or requests a shift change.
The law also affects part-time employees. Covered employers must provide employees who work less than 35 hours per week the same starting hourly wages, time off, and eligibility for promotion as provided to full-time employees with the same jobs. Pay differences are allowed for reasons other than part-time status, the time off may be pro-rated, and eligibility for promotion may be conditioned on availability for full-time employment or reasons other than part-time status.
Employers must provide notice in the workplace of rights under this law. They are required to retain documentation of work schedules and pay records for three years. Failure to do so gives rise to a presumption of failure to comply with this law absent clear and convincing evidence.
Retaliation by an employer for an employee’s exercise of her rights under this law is prohibited. Rights include a request to modify the initial proposed work shifts, and informing any person of rights under this law.
San Francisco’s Office of Labor Standards Enforcement has jurisdiction to enforce the law. The remedies it may order include: requiring an employer to provide lost wages to an employee whose rights were violated; a $50 administrative penalty to each employee whose rights were violated for each day of violation; and enforcement costs to be paid to the City of San Francisco. The City Attorney may bring a civil action for lost wages, a civil penalty not to exceed the amount of lost wages, reinstatement, and attorney fees and costs.
Hours and Retention Protections for Formula Retail Employees
Under this law, covered employers must offer additional work to part-time employees (working less than 35 hours per week) before hiring any new employees or using contractors or temporary services/staffing agencies. The employees have to be qualified to perform the additional work as determined by the employer, and the employees must have previously performed the same or similar work. Employees are not required to accept the offer, which must be in writing.
A second area covered by this law is the retention of employees when there is a change in ownership or control of a covered workplace. The outgoing (incumbent) employer must provide the incoming (successor) employer with a list of employees, including names, contact information, dates of hire, rates of pay, and average number of hours worked per week in the past six months. The incoming employer must employ eligible employees—those who were employed for at least 90 days prior to the change of control—on this retention list under the same terms of employment for at least 90 days. The incoming employer must make an offer of employment in writing, including when an establishment location changes within San Francisco. If the incoming employer determines it requires fewer employees, it must retain employees by seniority based on the date of hire by the outgoing employer or as required by a collective bargaining agreement. The incoming employer cannot discharge any eligible employees without cause during the 90-day period.
The outgoing employer must post a notice in the workplace about any change of control for 30 days. The notice has to include the names of the outgoing and incoming employers, postal and electronic addresses for employees to provide updated contact information, and the effective date of the change of control. The incoming employer must include a notice of rights under this law with the first paycheck it issues, and post a notice of rights in the workplace.
Under this law, covered employers must retain work schedules, pay records, and written offers for additional work hours for three years. The same retention period applies to incoming employers with respect to offers of employment to eligible employees and the retention list.
Retaliation by an employer for an employee’s exercise of her rights under this law is prohibited. Rights include informing any person of rights under this law, and a good faith (even if mistaken) allegation of a violation of the law. If an employer takes adverse action against an employee within 90 days of the employee’s exercise of her rights, there is a rebuttable presumption that the action was taken because of the exercise of rights.
OLSE has jurisdiction to enforce the law. The remedies it may order include: requiring an employer to provide additional hours of work; reinstatement; payment of lost wages to an eligible employee whose rights were violated; an administrative penalty not to exceed the amount of lost wages; and enforcement costs to be paid to the City of San Francisco. OLSE also has the authority to assess administrative fines of $500 per eligible employee for a violation of the requirements concerning the retention list; notice of change of control; notice of rights with the first paycheck; posting of notice of rights (where each day is a separate violation after notice of continued violation would authorize a citation); making of employment records available to OLSE; and written offers of additional hours of work. The City Attorney may bring a civil action for lost wages, a civil penalty not to exceed the amount of lost wages, reinstatement, and attorney fees and costs.