Berkeley Fair Workweek Ordinance

You can find more information regarding the FWWO on the city’s website. You may also call (510) 981-5000 or email Rules4work@cityofberkeley.info.

Covered Employers

A covered employer is any employer in the city with 10 or more employees in the city that is:

• Primarily engaged in the building services, health care, hotel, manufacturing, retail or warehouse services industries, and employs 56 or more employees globally; or
• Primarily engaged in the restaurant industry and employs 100 or more employees globally; or
• A franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises with franchisees employing in the aggregate 100 or more employees globally; or
• A not-for-profit corporation organized under U.S. Internal Revenue Code Section 501 in any of the industries specified above and employs 100 or more employees globally.1

When counting employees for coverage purposes during any given week, employers must count all full-time, part-time and temporary workers including those provided through a temporary services or staffing agency or other similar entity.2 For purposes of employer coverage, the following definitions apply:

“Building services” means the care and maintenance of property, including, but not limited to, janitorial services, building and grounds maintenance services, and security services.3

“Health care” includes the following facility types:

• “Hospital,” which is a facility for in-patient medical care licensed by the state of California.
• “Medical Practitioner Office,” including clinics or offices and related laboratories for doctors, dentists, chiropractors, optometrists, mental health practitioners, osteopaths, chiropodists and similar practitioners of the traditional healing arts, as well as holistic health care providers and practitioners of a non-traditional nature. This use includes acupuncturists, herbalists, nutritionists, midwives, reflexologists, iridologists, physical therapists and bodyworkers, but excludes offices for veterinarians or opticians.
• “Nursing Home,” including an establishment that provides 24-hour medical, convalescent or chronic care to individuals who, by reason of advanced age, chronic illness or infirmity, are unable to care for themselves, and is licensed as a skilled nursing facility by the California State Department of Health Services. This use includes rest homes and convalescent hospitals, and excludes community care facilities, senior congregate housing and hospitals.
• “Supportive Housing,” which is housing geared toward a target population — such as persons with disabilities, families who are homeless or homeless youth — that does not have a limit on length of stay and is linked to on- or off-site services that assist the supportive housing residents in retaining the housing, improving their health status, and maximizing their ability to live and, when possible, work in the community.
• A facility that provides outpatient maintenance dialysis.4

“Hotel” means a building with sleeping rooms used, designed or intended for occupancy by transient guests for a period not to exceed 14 consecutive days. This use includes inns, bed and breakfasts, and hostels, and excludes buildings with residential hotel rooms and dwelling units.5

“Manufacturing” means primarily engaged in the mechanical or chemical transformation of materials or substances into new products. Manufacturing activities include assembly, baking, brewing, fabrication, milling, processing, refining, smelting, treatment and any other uses as determined by the Zoning Officer. Except as otherwise provided in the Berkeley Municipal Code, manufacturing uses are defined, and distinguished from nonmanufacturing uses, in the North American Industrial Classification Manual (311611--33”999).6

“Restaurant” means an establishment that in whole or in part prepares food or beverages for immediate consumption on or off the premises.7

“Retail” means a establishment engaged in the sale of personal, consumer or household items to customers who will use such items, as further described under the Berkeley Municipal Code.8

“Warehouse services” means retail activity that is based on sales without on-site customer visits. This use includes businesses engaged in catalog sales, internet sales and phone orders. Goods may be both stored and distributed from site. This use includes delivery-only cannabis retailers located in the Manufacturing district.9

• To determine whether a nonfranchisee entity is a covered employer under the FWWO, the FWWO requires separate entities that form an integrated enterprise to be considered a single employer. However, the City Manager has not yet promulgated rules with clarifying factors for whether multiple entities are an integrated enterprise as directed under the FWWO.10 If you are a nonfranchisee entity that does business in the city of Berkeley in one of the industries covered by the FWWO, consult with legal counsel to determine whether you are covered.

Covered Employees

A covered employee is any individual who meets the following criteria, regardless of where the employer is located:

• Performs at least two hours of work within the geographic boundaries of the city for a covered employer in a particular workweek;
• Is entitled to earn the California minimum wage, including those eligible for the learner's minimum wage; and
• Is not exempt from payment of overtime under California Labor Code section 510 and is not paid a monthly salary equivalent to at least 40 hours per week at a rate of pay twice the city minimum wage (currently $6,264.27 per month).11

• For the most up-to-date minimum wage information, please visit the Berkeley Minimum Wage Ordinance page.

Employer Obligations

This section contains information on covered employers’ obligations:

• Advanced Notice of Work Schedules.
• Schedule Changes.
• Offer of Work to Existing Employees.
• Right to Rest.
• Right to Request a Flexible Working Arrangement.

Advanced Notice of Work Schedules

Covered employers must provide new employees with an initial, good faith estimate of the employee's work schedule in writing.12 Employees may submit a written request to modify the estimated work schedule, and the covered employer may accept or reject the request by notifying the employee in writing prior to or on commencement of the employee's employment.13 “In writing” may include printed or printable communications in physical form, or in electronic form transmitted through electronic means including e-mail, text message or a computer system, or otherwise sent and stored electronically.14

Covered employers must also provide current employees with a written notice of their work schedule at least two weeks before the start of the work period in one of the following ways:

1. Posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or
2. Sending the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace.15

Covered employers are permitted to provide more than two weeks of notice for schedules, if desired.16

Covered employers may provide a new hire’s initial schedule prior to or on the first day of employment, but must then include the new hire in the regular schedule as described above for all subsequent schedules.17

The “work schedule” means all of an employee's shifts — including specific start and end times for each shift — during a calendar week of seven consecutive days commencing on Sunday.18 The shift shall include the consecutive hours the covered employer requires the employee to work including meal and rest periods.19

Employees who are victims of domestic violence or sexual violence (as those terms are defined in California Family Code sections 6211 or 6203, and encompassing acts described in section 6320) may request that their work schedule not be posted or sent to other employees.20 The employee's request may be oral or in writing, and a covered employer may request a written statement from an employee that says the employee is a victim of domestic violence or sexual violence, which will constitute the only documentation needed for a covered employer to implement the request.21 A covered employer may not require more than one written statement from an employee per calendar year.22

Schedule Changes

When a covered employer initiates a change to a posted or transmitted work schedule, the covered employer must provide notice of change, an opportunity for the employee to decline additional scheduled hours without adequate notice, and “predictability pay” for schedule changes without adequate notice.

Any time a covered employer initiates a change to an employee's posted or transmitted schedule, the employer must do so in writing to the affected employee within 24 hours of the schedule change.23 “In writing” may include printed or printable communications in physical form, or in electronic form transmitted through electronic means including e-mail, text message or a computer system, or otherwise sent and stored electronically.24

If a covered employer adds previously unscheduled hours to an employee's schedule without providing at least 14 days' notice before the first day of the new schedule, the employee may decline to work those additional hours.25

In the event a covered employer adds an unscheduled shift, adds or subtracts hours to a shift, moves a shift to another date or time, or cancels a shift without at least 14 days' notice before the first day of the new schedule, the employer must pay “predictability pay.”26 Predictability pay is wages paid based on an employee's regular rate of pay — calculated in the same manner as for overtime — in addition to any wages for work actually performed.27

The amount of predictability pay a covered employer must pay depends upon the type of schedule change and the notice provided:28

Employer-Initiated Change	Predictability Pay
Any type of schedule change with less than 14 days’ notice but 24 hours’ or more notice.	One hour at the employee’s regular rate of pay.
When hours are canceled or reduced with less than 24 hours’ notice.	Four hours or the number of canceled or reduced hours, whichever is less, at the employee’s regular rate of pay.
All other additions and changes made with less than 24 hours’ notice.	One hour at the employee’s regular rate of pay.

Covered employers are permitted to provide more than two weeks of notice for schedule changes, if desired.29

A covered employer is not required to follow these schedule change rules or provide predictability pay in the following scheduling circumstances:

1. Mutually agreed upon work shift swaps or coverage arrangements between employees;
2. Employee-initiated voluntary shift modifications, such as voluntary requests to leave a scheduled shift or use sick leave, vacation leave or other leave policies offered by the employer; or
3. To accommodate the following shift transitions:
• An employee works no more than 30 minutes past the end of the scheduled shift to complete service to a customer provided the employee is paid their regular rate of pay for the additional work.
• An employee begins or ends their scheduled shift no more than 10 minutes prior to or after the scheduled shift provided the employee is paid their regular rate of pay for the additional work.30

A covered employer is also not required to follow these schedule change rules or provide predictability pay in the following operational circumstances:

1. Operations cannot begin or continue due to threats to covered employers, employees or property, or when civil authorities recommend that work not begin or continue;
2. Operations cannot begin or continue because public utilities fail to supply electricity, water or gas, or there is a failure in the public utilities or sewer system;
3. Operations cannot begin or continue due to acts of nature (including but not limited to flood, fire, explosion, earthquake, tidal wave, drought), pandemic, war, civil unrest, strikes or other cause not within the covered employer's control;
4. Specific to the manufacturing industry, when events outside of the manufacturer's control result in a reduced need for employees, including, but not limited to, when a customer requests a delay in production or there is a delay in receiving raw materials or component parts needed for production; or
5. Specific to health care industry employers:
• Any declared national, state or municipal disaster or other catastrophic event, or any implementation of a covered employer's disaster plan, or incident causing a hospital to activate its emergency operations plan that is reasonably expected to substantially affect or increase the need for health care services
• Any circumstance in which patient care needs require specialized skills through the completion of a procedure; or
• Any unexpected substantial increase in demand for health care due to large public events, severe weather, violence or other circumstances beyond the health care employer's control.31

Offer of Work to Existing Employees

Before a covered employer hires a new employee or uses a contractor, temporary service or staffing agency, the employer must first offer the work to current part-time employees who:

1. Have worked for the covered employer for more than two weeks;
2. Are reasonably and in good faith determined by the covered employer as qualified to do the additional work; and
3. Do not work the same scheduled hours as the additional scheduled work hours needed.32

If there are qualified part-time employees to receive offers of additional work hours, the covered employer must make the offer in writing or by posting the offer in a conspicuous location in the workplace or electronically where notices to employees are customarily posted.33

Covered employers are not required to offer additional work hours to existing employees that would result in overtime payments; however, the covered employer may choose to offer overtime.34

A part-time employee who is offered additional hours is not required to accept the additional hours, but if they choose to accept the additional hours, they must accept the additional hours in writing within 24 hours of receiving the written offer, or within 24 hours of the covered employer posting the additional hours offer, whichever is sooner.35

A covered employer is not required to distribute additional hours based on seniority, but the system the employer chooses must not:

• Discriminate on the basis of race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity or expression, disability, age, marital or familial status, or family caregiving responsibilities; or
• Be intended to avoid an increase in the number of employees working 30 or more hours per week.36

Right to Rest

Employees have a right to decline work hours that occur less than 11 hours from the end of the employee's last shift37 without their written consent. An employee may agree to work hours that occur less than 11 hours from the end of the employee's last shift in writing as long as the covered employer pays one and one-half times the employee's regular rate of pay for all hours worked that occurred less than 11 hours from the end of the employee's last shift.38

Right to Request a Flexible Working Arrangement

Employees have the right to request a modified work schedule, including but not limited to:

• Additional shifts or hours;
• Changes in days of work;
• Changes in shift start and/or end time;
• Permission to exchange shifts with other employees;
• Limitations on availability;
• Part-time employment;
• Job sharing arrangements;
• Reduction or change in work duties; or
• Part-year employment.39

Covered employers may choose to accept, modify or decline the employee's request. Regardless of the covered employer's choice, the employer may not retaliate against the employee for exercising their right to request a flexible working arrangement.40

Notice, Posting and Recordkeeping Requirements

Covered employers must provide to each current employee and each new employee at the time of hire a written notification of their rights under the FWWO, as well as the covered employer's name, address and telephone number.41

In addition to providing the notice directly to current and new employees, the covered employer must also post the notice prominently in areas at the work site where it will be seen by all employees.42 Failure to post the notice will subject covered employers to an administrative citation from the city.43

• The FWWO also requires employers to provide the notice and posting in any language other than English as provided for in implementing regulations. Currently, the city has not issued regulations; however, that may change in the future.

Covered employers must retain the following records for each current and former employee for three years:

• Employee name
• Hours worked;
• Pay rate;
• Initial posted schedule and all subsequent changes to that schedule; and
• Consent to work hours where such consent is required by the FWWO.44

Covered employers must also maintain for three years any documentation of the time and method of offering additional work hours to existing staff.45

Covered employers shall provide each employee a copy of records relating to that employee upon the employee's reasonable request.46 Covered employers shall also allow the city to inspect and copy employment records upon request with Social Security numbers redacted.47

Retaliation

Employees who seek to enforce their rights under the FWWO by any lawful means — such as making a complaint to the city's City Manager Department (department), participating in department proceedings, filing a civil action for FWWO violation or otherwise asserting their rights under the FWWO (“protected activities”) — are protected from retaliation by a covered employer. Retaliation may include, but is not limited to, the following acts:

• Termination of employment;
• Reduction of compensation;
• Disciplinary actions;
• Suspension of employment;
• Transfer or reassignment to a lesser position in terms of job classification, job security or other condition of employment;
• Reduction of work hours or denial of additional work hours;
• Informing another employer that the employee engaged in protected activities;
• Reporting or threatening to report the actual or suspected citizenship or immigration status of an employee, former employee or family member of an employee.48

A covered employer may not terminate an employee engaging in protected activities within 120 days of being notified of such protected activities unless the employer has clear and convincing evidence of just cause for terminating the employee.49

Implementation and Enforcement

An employee may report to the department any suspected violation of the FWWO.50 The department may investigate any possible FWWO violations through investigations that may include inspections of worksites, interviews of workers and other relevant people, and records subpoenas.51 Covered employers must permit the department to access work sites and relevant records for this purpose.52

The department may enforce the FWWO by issuing administrative citations for violations as follows:

• A fine of $1,000 may be assessed for each employee that a covered employer retaliates against for that employee exercising their rights under the FWWO.53
• A fine of $500 may be assessed for failure to:
• Provide notice of employees' rights under the FWWO.
• Timely provide initial work schedule or to timely update work schedules following changes.
• Provide predictability pay as required for schedule changes made with less than 24 hours advance notice.
• Offer work to existing employees before hiring new employees or temporary staff, or to award work to a qualified employee.
• Maintain payroll records as required by the FWWO.
• Allow the department to access payroll records.54
• A fine may be assessed that's equal to the amount of actual monetary damages the employee suffered including but not limited to backpay, interest, reasonable attorneys’ fees and costs, and administrative penalties in the amount of $50 per day for each day of FWWO violations capped at $1,000 per year.55

The department may also seek appropriate remedies as follows:

• "Reinstatement of employment;
• "Payment of predictability payment unlawfully withheld;
• "Civil penalty of $50 for each employee whose FWWO rights were violated for each day the violations occurred;
• "Interest on all due and unpaid wages at a rate specified in California Civil Code section 3289(b) from the date the wages were due until the date the wages are paid in full;
• "Reimbursement of the city's administrative costs of enforcement and reasonable attorneys' fees; and
• "If a repeated violation of the FWWO is determined in a period of July 1 to June 30 of the following year from the initial violation, a $50 civil penalty to the city for each employee whose FWWO rights were violated for each day the violations occurred.56

Alternatively, an aggrieved employee may file a civil action in court for violations of the FWWO.57 Although an aggrieved employee may bring a complaint to the department, there is no requirement that the employee do so prior to filing a civil action.58 Upon prevailing, an aggrieved employee shall be awarded reasonable attorneys' fees and costs, and shall be entitled to all legal or equitable relief appropriate to remedy the violation, including but not limited to backpay, administrative penalties in the amount of $50 per day for each day of FWWO violations capped at $1,000 per year, reinstatement in employment and injunctive relief.59

Collective Bargaining Agreements

Ordinarily, the terms of the FWWO were operative for all covered employers and employees on January 12, 2024. However, with respect to employees subject to a collective bargaining agreement, the FWWO became operative upon the commencement date of a bona fide second or successor collective bargaining agreement or January 12, 2024, whichever date is earlier.60

The requirements of the FWWO may be waived in full, or in part, in a bona fide collective bargaining agreement as long as the waiver is set forth explicitly in the agreement in clear and unambiguous terms.61

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1. Berkeley Mun. Code sec. 13.102.030(a)

2. Berkeley Mun. Code sec. 13.102.030(b)

3. Berkeley Mun. Code sec. 13.102.020(a)

4. Berkeley Mun. Code sec. 13.102.020(l)

5. Berkeley Mun. Code sec. 13.102.020(m)

6. Berkeley Mun. Code sec. 13.102.020(n)

7. Berkeley Mun. Code sec. 13.102.020(p)

8. Berkeley Mun. Code sec. 13.102.020(q)

9. Berkeley Mun. Code sec. 13.102.020(s)

10. Berkeley Mun. Code sec. 13.102.030(c)

11. Berkeley Mun. Code sec. 13.102.020(f)

12. Berkeley Mun. Code sec. 13.102.050(a)

13. Berkeley Mun. Code sec. 13.102.050(a)

14. Berkeley Mun. Code sec. 13.102.020(u)

15. Berkeley Mun. Code sec. 13.102.050(b)

16. Berkeley Mun. Code sec. 13.102.060(f)

17. Berkeley Mun. Code secs. 13.102.020(b), 13.102.020(t)

18. Berkeley Mun. Code sec. 13.102.050(b)(2)

19. Berkeley Mun. Code sec. 13.102.020(r)

20. Berkeley Mun. Code sec. 13.102.050(c)

21. Berkeley Mun. Code sec. 13.102.050(c)

22. Berkeley Mun. Code sec. 13.102.050(c)

23. Berkeley Mun. Code sec. 13.102.060(a)

24. Berkeley Mun. Code sec. 13.102.020(u)

25. Berkeley Mun. Code sec. 13.102.060(b)

26. Berkeley Mun. Code sec. 13.102.060(c)

27. Berkeley Mun. Code sec. 13.102.020(o)

28. Berkeley Mun. Code secs. 13.102.060(c)(1)-(2)

29. Berkeley Mun. Code sec. 13.102.060(f)

30. Berkeley Mun. Code sec. 13.102.060(d)

31. Berkeley Mun. Code sec. 13.102.060(e)

32. Berkeley Mun. Code sec. 13.102.070(a)

33. Berkeley Mun. Code sec. 13.102.070(d)

34. Berkeley Mun. Code sec. 13.102.070(a)

35. Berkeley Mun. Code sec. 13.102.070(c)

36. Berkeley Mun. Code secs. 13.102.070(a)-(b)

37. Berkeley Mun. Code sec. 13.102.080(a)

38. Berkeley Mun. Code sec. 13.102.080(b)

39. Berkeley Mun. Code sec. 13.102.090

40. Berkeley Mun. Code sec. 13.102.090

41. Berkeley Mun. Code sec. 13.102.100(b)

42. Berkeley Mun. Code sec. 13.102.100(b)

43. Berkeley Mun. Code sec. 13.102.100(b)

44. Berkeley Mun. Code sec. 13.102.140

45. Berkeley Mun. Code sec. 13.102.140

46. Berkeley Mun. Code sec. 13.102.140

47. Berkeley Mun. Code sec. 13.102.150

48. Berkeley Mun. Code sec. 13.102.130

49. Berkeley Mun. Code sec. 13.102.130

50. Berkeley Mun. Code sec. 13.102.110(b)

51. Berkeley Mun. Code sec. 13.102.110(c)

52. Berkeley Mun. Code sec. 13.102.120(b)

53. Berkeley Mun. Code sec. 13.102.120(a)(1)

54. Berkeley Mun. Code sec. 13.102.120(a)(2)

55. Berkeley Mun. Code sec. 13.102.120(a)(3)

56. Berkeley Mun. Code sec. 13.102.120(d)

57. Berkeley Mun. Code sec. 13.102.120(c)

58. Berkeley Mun. Code sec. 13.102.120(c)

59. Berkeley Mun. Code sec. 13.102.120(c)

60. Berkeley Mun. Code sec. 13.102.030(d)

61. Berkeley Mun. Code sec. 13.102.040