Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 257 San Francisco . Formula Retail employers , 494 b efore hiring new employees or using contractors or a temporary services or staffing agency to perform work in a Formula Retail Establishment, must first offer the additional work to existing part-time employees if: (1) the part-time employee is qualified to do the additional work, as reasonably determined by the employer, and (2) the additional work is similar to work the employee has performed for the employer . 495 F urther, Formula Retail employers need offer only the number of hours needed for the part-time employee to reach 35 hours of work in a week. The Formula Retail employer must deliver a written offer of the additional hours, or post the offer in a conspicuous location in the workplace where employee notices customarily appear. The part-time employees must be provided 72 hours to accept the additional hours, after which the employer may hire new employees or use contractors to work the additional hours. If a Formula Retail Establishment changes ownership, then the new Formula Retail employer, or “successor employer,” must retain for 90 days those employees of the old Formula Retail employer—the incumbent employer—who worked for at least six months prior to the change of ownership (other than supervisory, managerial, or confidential employees). The successor employer must retain each eligible employee under the same terms of employment with respect to job classification, compensation, and number of work hours that governed the employee and the incumbent employer. During the 90-day period, an eligible employee is immune from discharge without cause. Incumbent employers must provide and the successor employer must maintain a “retention list” that includes the employee’s name, contact information, date of hire, rate of pay, average number of weekly hours during the six months preceding the change in control, and occupational classification. The successor and incumbent employers must also post certain notices, and the successor employer must make employment offers to workers on the retention list based on seniority or pursuant to an existing collective bargaining agreement . 496 San Jose. Under San Jose’s “Opportunity to Work Ordinance,” covered employers must offer part-time nonexempt employees additional work hours before hiring any new or temporary employees . 497 T he City of San Jose has provided guidance on the enforcement of the measure on the city website . 498 T he ordinance covers San Jose employers that exercise control over the wages, hours, or working conditions of any employee and are subject to San Jose’s business tax or have a business in San Jose that is exempt under state law from the tax imposed by Chapter 4.76 . 499 For chain businesses and franchisees, the ordinance counts all employees, including both full and part-time employees, regardless of whether they work in San Jose . 500 A n “employee” is anyone who, in a calendar week, works at least two hours for an employer, and who qualifies as an employee under a company’s direct or indirect control as to wages, hours, or working conditions who is entitled to minimum wage . 501 A covered employer must offer incumbent employees (if they have the skill and experience to perform) extra hours of work before the employer uses temporary employees or hires new employees. Employers need not provide the additional hours if doing so would create entitlement to overtime or other premium wages . 502 Employers must also post notice of the rights created by the ordinance , 503 m ust use a “transparent and non- discriminatory process” to distribute hours among existing employees , 504 must retain records for new hires that show the employer’s efforts to first offer the additional work to existing part-time employees for a four year period , 505 a nd must preserve, for four years, employees’ work schedules and any other records required to demonstrate compliance with the ordinance . 506 S an Jose can address violations by issuing fines of up to $50 per violation and by seeking civil penalties in court . 507 The ordinance also authorizes private actions: a person not offered work under the ordinance can sue for lost wages, penalties, and attorney fee s. 508 The ordinance’s employee-friendly retaliation provision creates a