Covered employees receive protections relating to:

• Advance notice of work schedules;
• Compensation for schedule changes;
• Compensation for agreeing to work hours that occur within 11 hours of the end of a prior shift;
• Increased opportunities to transition from part-time to full-time work; and
• Rights to request flexible work arrangements.1

• The Ordinance is effective July 1, 2017. The city made amendments to the Ordinance, which are effective November 17, 2017. The city has approved implementing regulations for the Ordinance and issued Frequently Asked Questions.

You can find more information regarding the Ordinance on the city’s Fair Workweek Ordinance webpage. You can also contact at (510) 596-4351 or fairworkweek@emeryville.org.

Covered Employers

A covered employer under the Ordinance includes:2

• Retail firms with 56 or more employees globally; and
• Fast-food firms with 56 or more employees globally and 20 or more employees within the city limits of Emeryville.

The Ordinance defines “firm” to include a business organization or entity consisting of one or more establishments under common ownership or control.3 Covered employers include franchisees associated with a franchisor or a network of franchisees with more than 12 locations globally. Separate entities that form an integrated enterprise will be counted as a single employer under the Ordinance.4

According to the Ordinance and regulations, all employees who meet the definition of a “covered employee” (see below) should be counted, regardless of whether they perform work on a full-time, part-time or temporary basis.5

Calculation of the number of employees must be made on a quarterly basis, beginning with January 1 of each year. If the number of employees fluctuates, the average number per week for a quarter determines whether you are a covered employer for the following quarter. The city requires you to keep records of these calculations for three years.6

Covered Employees

Employees are covered under the Ordinance if they:

• Work at least two hours within the geographic boundaries of the city in a calendar week (a period of seven consecutive days starting on Sunday); and
• Qualify as an employee entitled to payment of a minimum wage under the California minimum wage law, including learners.

The Ordinance does not apply to exempt employees.7

The Ordinance does not apply to employees covered by a bona fide collective bargaining agreement (CBA) if the requirements of the Ordinance are expressly waived in the CBA in clear and unambiguous terms.8

Requirements

Advance Notice of Work Schedules

You must provide all employees with at least two weeks’ notice of their work schedules. You can provide notice by:

• Posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or
• Transmitting the work schedule electronically, as long as all employees are given access to the electronic schedule in the workplace.9

Employees must be able to modify the posting schedule to reflect agreed-upon shift swaps; however, you may require that you pre-approve any shift swaps.10

For new employees, you must provide a written, good-faith initial estimate of their work schedule prior to or at the time their employment begins.11 The employee may request a modification to the estimated work schedule. Although you must consider the request, you do have discretion to accept or reject it. Notify the employee of your determination in writing before or when employment begins.12

Changes to Work Schedules

The Ordinance also sets requirements for how and when you may change an employee’s work schedule.

If you make a change to a posted work schedule, you must notify the affected employee either by an in-person conversation, telephone call, email, text message or other electronic communication. You do not have to notify the employee if the employee initiated the change.13

If you give an employee less than 14 days’ notice of a schedule change, the employee has the right to decline the previously unscheduled hours that you added to the employee’s schedule.14

In addition, you will have to pay the employee “predictability pay” for each previously scheduled shift for which you add or subtract hours, move to another date or time, or cancel, and for any previously unscheduled shift that you add to an employee’s schedule.15

The amount of predictability pay owed to the employee depends on the length of notice you give to the employee:16

Amount of Notice	Change to Shift	Hours of Predictability Pay
Less than 14 days and more than 24 hours	Any	One hour
Less than 24 hours	Reduction of hours or cancellation of shift	Lesser of the length of the scheduled shift or 4 hours
Less than 24 hours	All changes except reduction of hours or cancellation of shift	One hour

Predictability pay is in addition to the regular pay the employee will receive for working the shift. Predictability pay is paid at the employee’s regular rate of pay.17

An employee’s right to decline a shift or receive predictability pay does not apply if:18

• Operations cannot begin or continue because of threats to you, your employees or property, or when civil authorities recommend that work not begin or continue;
• 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;
• Operations cannot begin or continue because of acts of nature, war, civil unrest, strikes or other causes not within your control;
• Employees mutually agree to switch shifts;
• The following shift “transitions” occur, as long as employees are paid at their regular rate for the additional time worked:
  • If an employee works past the end of a scheduled shift to complete service to a customer, which would entitle the employee to a tip, commission or other incentive pay; or
  • An employee works a 10-minute period at, before or after a scheduled shift.
• The employee initiates voluntary shift modifications, such as requesting to leave a shift early; or
• When you are paying overtime to the employee, provided the payment of overtime exceeds the predictability pay.

The regulations provide additional guidance on predictability pay situations:19

• Predictability Pay is required when the schedule change is related to the needs of a third party, such as deliveries, installations, instructions or service cancellations.
• Predictability Pay is not required when you require an employee to leave work early, but pay for the scheduled shift.
• Predictability Pay is not required if the employee asks to leave a shift early without prompting by the employer. However, if the employer asks for volunteers to leave a shift early, Predictability Pay is owed.

The regulations state that Predictability Pay is not intended to be counted as actual hours worked for purposes of Emeryville Paid Sick Leave or other benefits.20

Offering Work to Existing Employees

The Ordinance requires that before you hire additional workers, including through the use of temporary services or staffing agencies, you offer additional hours of work to existing part-time employees who you reasonably and in good faith determine to be qualified to do the additional work. You have to offer only up to the number of hours required to give the part-time employee a total of 35 hours in a calendar week.21 You are not required to offer hours to an employee if doing so would require you to pay overtime to the employee due to the additional hours.22

You may decide how to divide the additional hours among part-time employees as long as your system for distributing hours does not discriminate on the basis of race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity, disability, age, marital or familial status, family caregiving responsibilities, or status as a student. You also cannot distribute hours for the purpose of avoiding application of the Affordable Care Act.23

In assigning additional work, you may give preference to a part-time employee who is willing to accept all of the hours of additional work. If no single part-time employee is willing to accept all the hours of additional work, you must allow a part time employee to accept a portion of the additional hours, as long as:

• The total number of additional hours the part-time employee accepts is four or more consecutive hours; and
• The remainder of the additional hours that the part-time employee does not accept is at least four consecutive hours.24

The regulations state that you may distribute additional hours of work pursuant to a written policy or procedures as long as you otherwise comply with the Ordinance, and the written policy addresses all of the following:

• When a vacant full-time position will be offered as additional work to part-time employees as a full-time position, which would require the part-time employee to accept all hours of work associated with the full-time position;
• What reasonable and good faith efforts you will undertake to determine when a part-time employee is qualified for additional work;
• How you will distribute written policies and procedures including updates and modifications; and
• Any other policies and procedures necessary to implement the requirements of the Ordinance.25

If an employee accepts additional work with less than 14 days’ notice, the employee is entitled to predictability pay (see above).26

All offers of additional hours should be made either in writing or by posting the offer in a conspicuous location in the workplace where notices are customarily posted. The notice may be posted electronically in a conspicuous location on an internal website, if the website is readily accessible to all employees.27 The offer must include the total hours of work being offered, the schedule of available shifts, whether those shifts will occur at the same time each week, how long you will need the additional hours, and the process for employees to accept the offered hours.28 The regulations state that you must offer additional work to part-time employees for all locations within the city, and not just the location where the employee has historically reported.29

Employees may accept your offer of additional work, but they are not required to. Once the employee receives the written offer or the offer is posted in the workplace, an employee’s time to accept the offer begins to run. If the work offered is expected to last more than two weeks, the employee gets 72 hours to accept the offer. If the work offered is for two weeks or less, the employee gets 24 hours to accept the offer.30 An employee’s acceptance of additional hours must be in writing. If no part-time employee accepts the additional work, you may offer additional work to third parties, including a new hire or temporary employee.31

Right to Rest

The Ordinance gives employees the right to decline work hours that occur:

• Less than 11 hours after the end of the previous day’s shift; or
• During the 11 hours following the end of a shift that spanned over two days.

If an employee agrees in writing to work such a shift, the employee must be paid one and a half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.32

The regulations provide examples of how to calculate this additional payment under the Ordinance. State law also requires the payment of overtime to nonexempt employees. You must comply with both state law and the Ordinance.

Right to Request a Flexible Working Arrangement

Employees have the right to request a modified work schedule. The regulations require that employee requests, and employer responses, be in writing.33

Examples of modified schedules include:34

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

Posting Requirements

The Ordinance requires you to post a notice, published by the city, that informs employees of their rights under the Ordinance.35 The notice must be in English and Spanish. You must prominently post the notice in areas of the workplace where it will be seen by all employees.

• The poster and notice to employees are available on the city’s website.

You must provide all current employees and all new employees with written notification, at the time of hire, of their rights under the Ordinance. You must also provide written notice of your name, address and telephone number to new employees at the time of hire.36

Recordkeeping Requirements

The Ordinance requires employers to keep records for each employee of hours worked, pay rate, initial posted schedule and all subsequent changes to the schedule, and consent to work hours (when consent is required under the Ordinance). You must also keep records of the time and method of offering additional hours to existing employees. Records must be kept for at least three years. Employees have the right to obtain a copy of records relating to them.37 Employee requests for flexible working arrangements, and employer responses, are also subject to these recordkeeping requirements.38

You must allow the city to access your work site and records to monitor compliance with the Ordinance.39

Enforcement

The Ordinance is enforced by the city. The city has stated that its enforcement will be a “soft launch” until January 1, 2018, at which time full enforcement with fines and citations will begin.

The city can investigate and issue administrative citations and fines for violations.40 Fines may include:

• $1,000 for each employee retaliated against;
• A fine equal to the total amount of remedies (see below); and
• $500 for any of the following violations:
  • failure to provide required notices;
  • failure to provide a timely initial work schedule or update;
  • failure to pay predictability pay for schedule changes of less than 24 hours’ notice;
  • failure to offer work to existing part time employees; or
  • failure to maintain or provide the city access to records.

Employees can also bring a private right of action for violations. The party who prevails in the lawsuit is entitled to attorney’s fees, witness fees and costs.41

Remedies for violations of the Ordinance may include reinstatement; back pay; payment of unlawfully withheld predictability pay; interest on unpaid wages; civil penalties in the amount of $50 to each employee whose rights were violated for each day of the violation (in addition to fines); and reimbursement of the city’s administrative costs of enforcement and attorneys’ fees and costs. If repeated violations are determined in a period from July 1 to June 30 of the following year, the city may also require a civil penalty of $50 payable to the city for each person whose rights were violated and for each day of the violation.42

Retaliation

The Ordinance protects employees against retaliation for exercising their rights under the Ordinance.43 For example, employees have the right to request a flexible work arrangement, file complaints with the city and seek to assert their rights under the Ordinance.

The Ordinance makes it unlawful for an employer to terminate an employee within 120 days of the employer being notified that the employee asserted rights protected by the Ordinance, unless the employer can show clear and convincing evidence of just cause for the termination.44

---

1. Emeryville Mun. Code sec. 5-39

2. Emeryville Mun. Code sec. 5-39.02(a)

3. Emeryville Mun. Code sec. 5-39.01(h)

4. Emeryville Mun. Code sec. 5-39.02(d)

5. Emeryville Mun. Code sec. 5-39.02(c); Fair Workweek Employment Standards Regulations 2(b)

6. Fair Workweek Employment Standards, Regulations, 2(a); Frequently Asked Questions (June 2018) FAQ No. 9

7. Emeryville Mun. Code sec. 5-39.01(d); Frequently Asked Questions (June 2018) FAQ No. 6

8. Emeryville Mun. Code sec. 5-39.02(b)(1)

9. Emeryville Mun. Code sec. 5-39.03(b); Fair Workweek Employment Standards Regulations 3(c)

10. Fair Workweek Employment Standards Regulations 3(c)

11. Emeryville Mun. Code sec. 5-39.03(a)

12. Emeryville Mun. Code sec. 5-39.03(a)

13. Emeryville Mun. Code sec. 5-39.04(a)

14. Emeryville Mun. Code sec. 5-39.04(b)

15. Emeryville Mun. Code sec. 5-39.04(c)

16. Emeryville Mun. Code sec. 5-39.04(c)

17. Emeryville Mun. Code secs. 5-39-01(m), 5-39.04(c)

18. Emeryville Mun. Code sec. 5-39.04(d)

19. Fair Work Week Regulations 4(e)

20. Fair Work Week Regulations 4(h)

21. Emeryville Mun. Code sec. 5-39.05(a)

22. Emeryville Mun. Code sec. 5-39.05(f); Fair Work Week Regulations 5(b)

23. Emeryville Mun. Code sec. 5-39.05(b)

24. Fair Work Week Regulations 5(c)

25. Fair Work Week Regulations 5(a)

26. Fair Work Week Regulations 5(d)

27. Emeryville Mun. Code sec. 5-39.05(d)

28. Emeryville Mun. Code sec. 5-39.05(d)

29. Fair Work Week Regulations 5(f)

30. Emeryville Mun. Code sec. 5-39.05(c)

31. Fair Work Week Regulations 5(e)

32. Emeryville Mun. Code sec. 5-39.06

33. Fair Workweek Regulations 7(d)

34. Emeryville Mun. Code sec. 5-39.07

35. Emeryville Mun. Code sec. 5-39.08; Fair Workweek Regulations 8(a)

36. Emeryville Mun. Code sec. 5-39.08

37. Emeryville Mun. Code sec. 5-39.10(e)

38. Fair Workweek Regulations 7(d)

39. Emeryville Mun. Code sec. 5-39.10(f)

40. Emeryville Mun. Code sec. 5-39.09, 39.10(a)

41. Emeryville Mun. Code sec. 5-39.10(b)

42. Emeryville Mun. Code sec. 5-39.10

43. Emeryville Mun. Code sec. 5-39.10

44. Emeryville Mun. Code sec. 5-39.10(d)