As previously reported, in November 2022, the city of Berkeley passed a local ordinance providing for advance notice of schedules, adequate rest between shifts, offers of work to existing part-time employees, “predictability pay” when employee schedules are changed without adequate notice, and the ability for employees to request flexible schedules. This Fair Workweek ordinance begins on January 12, 2024, and in anticipation of enforcing the ordinance, Berkeley has issued a Frequently Asked Questions (FAQ) document to assist covered employers with compliance.
Covered Employees and Employers
Berkeley’s Fair Workweek ordinance applies to several different industries with a minimum of 56 employees globally and 10 employees working within the Berkeley city limits such as building services, health care, hotels, manufacturing, retail and warehouse services. It also applies to restaurants, including franchisees associated with a network of franchises, and not-for-profit corporations that employ a minimum of 100 employees globally and 10 employees working within Berkeley’s city limits.
Generally, Berkeley’s Fair Workweek ordinance covers nonexempt employees eligible to receive the California minimum wage who work at least two hours per week within Berkeley’s city limits. So, if an employee is classified as exempt under the administrative, executive or professional exemptions under state law, this ordinance does not apply to them.
Separately, an employee that earns a 40-hour per week salary that is at least two times the Berkeley-specific minimum wage is not covered. The FAQs provide an example of this exception where a nurse works 40 hours per week and makes $50 per hour. Under those circumstances, the nurse makes more than two times the current Berkeley minimum wage, which is currently $18.07 per hour. If the nurse did not work full time — and instead worked part time — they may not be exempt under the ordinance.
For employers, the FAQ provides guidance for counting employees to determine if the employer meets both the requisite number of employees globally, as well as the number of employees working within Berkeley’s city limits. Employers must count all employees whether they are full time, part time, temporary or otherwise supplied by a staffing agency.
Scheduling and Predictability Pay
A key ordinance provision requires covered employers to provide new hires with an initial good-faith estimate of the minimum hours the new hire will work no later than the first day of work. The FAQs also confirm that covered employers need to provide the same initial good-faith estimate to its existing employees no later than January 12, 2024.
Another key ordinance provision requires paying employees when an employer initiates a change to the posted schedule without proper advanced notice. The FAQs demonstrate how strict that requirement is — for example, when a covered employer sends an employee home 15 minutes early during their shift, they will be required to provide 15 minutes of predictability pay because the employee didn’t receive sufficient notice for the shift change.
Lastly, the FAQs reiterate that when an employee initiates the change to the shift — whether that is trading shifts with another employee or requesting to go home early — predictability pay will not be required.
Next Steps
Berkeley’s FAQs covers all aspects of the ordinance so covered employers are encouraged to review them as soon as possible as the ordinance begins and is enforceable as of January 12. Berkeley also produced a training module for employers to review to assist with compliance that covered employers should review as soon as possible.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
CalChamber members can read more about Berkeley’s Fair Workweek Ordinance on HRCalifornia. Not a member? Learn how to power your business with a CalChamber membership.
