San José’s New Scheduling Ordinance Effective March 13, 2017

Mar 9 2017 - Hiring, Workplace Policies - Gail Cecchettini Whaley

On November 8, 2016, San José voters passed the Opportunity to Work Ordinance. Under the ordinance, employers with 36 or more employees are required to offer additional work hours to existing, qualified part-time employees before hiring new employees, including subcontractors or the use of temporary staffing services.

part-time, part-time workers

Covered employers must offer additional hours to qualified part-time employees before hiring new employees.

It is effective on March 13, 2017.

According to the ordinance, employers must offer additional hours to these existing employees who, in the employers’ good faith and reasonable judgment, have the skills and experience to perform the work.

The ordinance will not require employers to provide additional hours if doing so will put an employee into overtime hours. Employers must use a transparent and nondiscriminatory process to distribute hours to existing employees.

The ordinance does not cover employees who are exempt from overtime under the state executive, administrative and professional employee exemptions.

The ordinance exempts small businesses with 35 or fewer employees. To determine if the small business exemption applies, employers must count both part-time and full-time employees.to

Chain businesses not owned by franchisees must count all employees at every location of the chain business, whether or not located within the City of San José.

For a franchisee, the number of employees is determined by the total number of employees at every location owned by the franchisee and operated under the same franchisee, whether or not located within the City of San José.

The City of San José provides the following example in its Frequently Asked Questions about franchisees:

Franchisee B owns one McDonald franchise in San Jose and two McDonald franchises in Palo Alto. The San José location employs 5 people and the two Palo Alto locations employ 10 people each. Franchisee B employs a total of 25 people which does not meet the 36-employee threshold under the Ordinance and is not subject to the Ordinance.

Any employer affected by the ordinance is encouraged to read the FAQs on the city’s website.

Employers can request a hardship exemption from the ordinance if they meet certain requirements. The “City of San Jose Opportunity to Work Ordinance Hardship Exemption Application” is found on the city’s Opportunity to Work webpage.

The ordinance also contains record-retention requirements and requires employers to post a notice in the workplace.

The ordinance is enforced by the City of San José Office of Equality Assurance. You can contact the office through email at Opportunitytowork@sanjoseca.gov or by calling (408) 535-8430.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber offers the San Jose Opportunity to Work ordinance poster, as well as the San Jose minimum wage poster and labor posters in other localities.

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