Retail employees seem disposable to many in the industry. Their work fluctuates with demand, and they are often left in situations that prevent them from being able to plan properly for family needs. Because of this, the city council in Los Angeles passed an ordinance in November 2022 that will help to encourage better treatment of these valuable employees. Organized by the Los Angeles Alliance for a New Economy (LAANE) along with the United Food and Commercial Workers International Union. This ordinance is modeled after similar ones in San Francisco, New York, Seattle, and other major municipalities.
Background
In 2018, after the release of a UCLA study reported that 8 in 10 retail workers had no control over their schedules which could fluctuate. Unfortunately, these same workers would receive less than one week’s notice for these changes. Because of the unpredictability of their work schedules, the ability to arrange care for children and elderly parents or arrange school schedules for those workers who are also taking classes became difficult to plan for.
The city council felt it necessary to support this ordinance because of its overwhelming impact on retail workers. Knowing it would help 77,000 employees, including those of color, women, and heads of households.
Fair Work Week
The ordinance has become known as Fair Work Week. The highlights of the law include the following:
- Employers must give employees their schedules at least two weeks in advance
- Workers must have at least 10 hours of rest in between shifts
- Workers not provided with the appropriated time in between shifts must be compensated for that time
- Employers must provide a written good-faith estimate of the employee’s estimated work schedule
- Any hiring an employer needs to do must first be offered to current, qualified employees before being filled by a contractor, temporary service, or staffing agency, and the opportunity must be posted at least 72 hours prior to hiring a new employee.
This ordinance is put in place to protect retail employees of larger retail chains that employ more than 300 employees worldwide. Such chains include Target, Home Depot, and Old Navy. The ordinance is set to go into effect in April of 2024.
Pay to Change
Under the new ordinance, employers will also be required to plan on paying for changes to schedules. This is known as “predictability pay.” This requirement means when schedules are changed within certain circumstances, an employer must provide compensation to an employee at the rate of one hour of pay if it does not impact employee time outside of the change or if the change adds more than 15 minutes of time to the employee’s schedule. If the change reduces the amount of time the employee is to work by at least 15 minutes, the employer will be required to pay the employee half their regular rate of pay.
Employers, however, are excluded from paying this penalty under the following circumstances:
- If the requested change was initiated by the employee
- If the absence of another employee caused a different employee to volunteer their time
- If there was a violation of law or employer policy by the employee that caused the change
- If the extra hours would qualify the employee for overtime pay
- If the operations of the employer are changed because of an act of God
An employer is not allowed to put the pressure of “finding coverage” on the shoulders of the employee if they need to call out for any reason. Ensuring full coverage for each shift is the responsibility of the employer.
Records Requirements
Under the new ordinance, employers must also follow record-keeping procedures. In addition to making them accessible to employees, employers must keep the following records on file for three years:
- Schedules for all employees
- Any written offers to an employee for additional hours with a copy of the employee’s written response
- Any correspondence with an employee regarding changes to their work schedule
- All good faith estimates of hours and wages for all new and existing employees
- All other records that will help the employer support their compliance with the Fair Work Week ordinance
Current Wage and Hour Laws
Retail employees already have the benefit of certain protections under California law. These protections include the following:
- Minimum wage – Currently, California is nearing the end of a five-year plan to raise the state minimum wage to $15.50 per hour, or the equivalent total for a 40-hour work week for salaried employees. This amount in 2024 will constitute the highest minimum wage. If, however, a local municipality decides to set its own minimum wage standards, then that would supersede the minimum set by the state.
- Overtime – Both hourly and salary non-exempt employees have the right to earn overtime statewide. Overtime pay is provided for hours worked beyond an employee’s eight-hour day or beyond 40 hours per week and is paid at a rate of one and a half times the employee’s salary. In addition, employees who work six days in a row are entitled to this rate on the seventh day, regardless of hours, up to eight hours. If the seventh day extends beyond eight hours, employees are entitled to double their rate of pay.
- Meals and breaks – Non-exempt employees are entitled to breaks and meals built into their schedules. For every four hours of work, employees are entitled to one ten-minute, duty-free break. For every 6 hours of work, they are entitled to one thirty-minute, duty-free meal break. If the employee agrees to skip either, then they are allowed; however, the employer must make the option available.
While these laws may make it difficult for employers who struggle with consistent employee callouts, it helps to protect the employee who wants to work but needs consistency in their schedule in order to best plan for their family.
Violations of Wage and Hour Laws
Under the California Labor Code, employees have the right to file a claim against their employer for any hour and wage violation. An employer failing to adhere to the law, including violations against the Fair Work Week ordinance, could face civil consequences. When an employer fails to uphold the law, employees could seek compensation for the following:
- Any unpaid minimum wage balances or overtime the employee earned that was not paid
- Any pay or back wages owed
- Any accrued interest on those amounts
- The litigation and attorney fees for bringing the claim to litigation.
Additionally, the Fair Work Week ordinance penalizes employers through fines for every day the employer is out of compliance. That means if the employer fails to provide timely work schedules consistently, does not provide adequate time between shifts or compensation for reduced time, or promotes improper hiring practices, then the employee can report the employer. The employer could face penalties in the amount of $50 per day if they are out of compliance. The city may also recover an additional $500 in penalties per employee per occurrence. Fines may be paid to the employee.
In addition to the monetary fine against employers, they will also have 15 days to rectify the violation. Employers are further prohibited from retaliating against or terminating an employee because they report violations in the Fair Work Week ordinance or other wage and hour violations.
Bringing Wage/Hour Claims Against Your Employer
Employees who seek to bring a claim against their employer because they believe their rights have been violated may do so for a number of reasons. These include the following:
- Identifying employees incorrectly, such as a non-exempt employee classified as exempt, or a seasonal employee classified as an independent contractor
- Requiring an employee to work off the clock or not properly compensating them for overtime work
- Not providing the required meal or rest breaks
- Failure to provide hazard pay
- Failure to adhere to the Fair Work Week ordinance
An employee may enforce the rights they are given, by law, through the help of a wage and hour attorney. The cost of the attorney will be put back on the employer if the employee proves their claim.
California Wage and Hour Attorneys
The Fair Work Week ordinance cannot arrive soon enough if you work in the retail, hospitality, or food industries. In many situations, this will help you or your loved one in properly planning for your family needs and balancing that with your work needs. When the ordinance becomes effective in April of 2024, the burden of work scheduling may finally be put to rest, and you can more confidently rely on your work. However, in the meantime, there are many other ways to ensure you are protected as an employee in California. Understanding your rights and protections under the law can help you be sure you are receiving a fair working environment and proper compensation for your hard work.
Collect all your supporting documentation and contact an attorney if you or your loved one feels an employer has violated wage and hour regulations. An experienced and knowledgeable attorney can help you seek the compensation you may be entitled to. The attorneys at Ferraro Vega have the answers to your questions. The state of California wants to protect the rights of workers, and so do we. Contact us today and let us be the help you deserve.