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Effective March 13, 2017, the city of San José (the city or San José) enacted an opportunity to work ordinance (the OTWO) that requires you to offer additional hours of work to current part-time employees who are capable of performing additional work prior to hiring more employees or subcontractors, including through the use of temporary services or staffing agencies.1
The OTWO applies to your business if:
A covered employer (employer) under the OTWO is an employer who employs 36 or more employees within the geographic boundaries of San José.4
Employers with fewer than 36 employees are considered "small businesses" exempt from the OTWO. For purposes of determining whether an employer is a small business:
You may qualify for a hardship exemption of up to 12 months if you can demonstrate to the city that you took all reasonable steps to comply with the OTWO but that full and immediate compliance would be "impracticable, impossible, or futile." The city may extend your hardship exemption in 12-month increments if you can demonstrate to the city that despite your best efforts to comply with the OTWO, the hardship continues to exist.7
Employers that believe they may be qualify for the hardship exemption must submit an Opportunity to Work Ordinance Hardship Exemption Application and supporting documentation to the city of San Jose’s Office of Equality Assurance.
A covered employee (employee) under the OTWO is any employee entitled to the payment of the San José minimum wage, that is, an employee who works two hours in a calendar week for a covered employer and is entitled to minimum wage under State law. See, San Jose MWO.8
Under the ordinance, you must offer additional hours of work to current part-time employees who, in your "good faith and reasonable judgment, have the necessary skill and experience to perform the work" prior to hiring additional workers, including through the use of temporary services or staffing agencies. 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.9
You must use a transparent and nondiscriminatory process for distributing the additional hours of work amongst your current qualified employees.10 You control what skills are necessary to cover the additional hours and how much notice is given to existing staff. The city has stated that employers should provide employees a meaningful opportunity to respond to the opportunity to work additional hours.11
For more information, the city’s Suggested Steps for Employers offers guidance to employers on steps they can take to comply with the Ordinance.
The OTWO requires you to post an official city-provided notice describing employee rights. The notice must be posted prominently at the work site and in a conspicuous place so that all employees will see it. The city will publish this notice in all languages spoken by more than five percent of the work force in the city.
However, you may have to translate the city-provided notice because you must display the notice in all languages spoken by at least five percent of the employees at each of your business locations, even if not one of the city-identified languages.12
The current San José Opportunity to Work Official Notice of Employee Rights can be found in CalChamber's San José Labor Law Posters and is available in English, Spanish, Chinese and Vietnamese.
You also must retain payroll records pertaining to employees for a period of four years.13 You also must keep records of the following information:
The city must be allowed to access these records with appropriate notice and at a mutually agreeable time.15
The Office of Equality Assurance (the Office) enforces the OTWO.16
The Office may conduct investigations and take administrative action to enforce the OTWO. If the Office conducts an investigation into whether an employer violated the OTWO, the employer will be required to post a notice informing employees of the investigation on a form provided by the Office.17 The Office is required to make every effort to resolve complaints informally before initiating an enforcement action.18
If the Office determines that an employer violated the OTWO, the Office may issue an administrative citation and a fine payable to the city of up to $50 for each day, or part of a day, and for each employee or person whose rights under the OTWO were violated. Fines, fees or civil penalties will not be assessed for an employer's first violation of the OTWO.19
In addition, the city, aggrieved employees, entities whose member(s) is an aggrieved employee, or persons or entities acting on behalf of the public, may file a civil lawsuit for any violation of the OTWO.20
Remedies for violations of the OTWO include reinstatement; back pay; penalties owed to each employee of $50 for each day that the violation occurred (in addition to the fines owed the city); interest on wages owed; reimbursement of the city's administrative costs of enforcement; and attorneys' fees and costs.21 The city also has the authority to take other enforcement actions, such as revoking or suspending permits or licenses, until the violation is remedied. For repeated violations, the city may require the Employer to post public notice of the Employer's failure to comply in a form determined by the city.22
Employees who assert their rights under the OTWO are protected against retaliation.23 For example, employees have the right to complain to their employer that they are not being offered additional hours for which they are qualified; file formal complaints; inform other employees of their right to additional hours; or to assist other employees in asserting their rights.
If an employer takes adverse action against an employee within 90 days after the employee asserted rights protected by the OTWO, it will be presumed this action was retaliatory. The employer will have to offer evidence to rebut this presumption.
1. San Jose Mun. Code sec. 4.101.040A
2. San Jose Mun. Code secs. 4.101.090, 4.101.030D
3. San Jose Mun. Code secs. 4.76.050, 4.76.170
4. San Jose Mun. Code secs. 4.101.090, 4.12.060
5. San Jose Mun. Code sec. 4.101.090A
6. San Jose Mun. Code sec. 4.101.090B
7. San Jose Mun. Code sec. 4.101.080A, B
8. San Jose Mun. Code sec. 4.100.030B
9. San Jose Mun. Code sec. 4.101.040
10. San Jose Mun. Code sec. 4.101.040A
11. Employer-Related FAQ No. 4
12. San Jose Mun. Code secs. 4.101.050A, 4.100.060A, B
13. San Jose Mun. Code sec. 4.100.060C
14. San Jose Mun. Code sec. 4.101.050B1, 2, 3
15. San Jose Mun. Code sec. 4.100.060C
16. San Jose Mun. Code secs. 4.100.090A, 4.101.060
17. San Jose Mun. Code secs. 4.100.080B, 4.101.060
18. San Jose Mun. Code sec. 4.100.080D
19. San Jose Mun. Code secs. 4.100.90A (1), 4.101.060
20. San Jose Mun. Code sec. 4.100.090A(3), B
21. San Jose Mun. Code sec. 4.100.090B, E
22. San Jose Mun. Code sec. 4.100.090D, F
23. San Jose Mun. Code sec. 4.100.070