San Francisco Retail Workers Bill of Rights Takes Effect JULY 3, 2015

By lfsuser on June 28, 2015

On July 3, 2015 the San Francisco city ordinances known as the “Retail Workers Bill of Rights,” which were passed in November 2014, go into effect in the City of San Francisco. These ordinances require covered employers to ensure that the following five requirements are complied with:

Who is Covered?

As it is defined, the Retail Workers Bill of Rights applies to “Formula Retail Establishments” with at least 20 retail sales establishments worldwide and 20 or more employees in San Francisco. The term “Formula Retail Establishment” means establishments that are in business for the purpose of conducting retail sales or service, and maintain at least two of the following features: (1) a standardized array of merchandise; (2) a standardized façade; (3) a standardized décor and color scheme; (4) uniform apparel; (5) standardized signage; and (6) a trademark or service mark.

5 Requirements of the Retail Workers Bill of Rights

1. Sale of Business

If a covered retail establishment is sold, the successor is required to retain the seller’s non-managerial incumbent employees who have been employed for at least 90 days prior to the sale. The successor employer must retain these incumbent employees for at least 90 days and under the same terms of employment already in place (e.g., rate of pay, job classification, and the number of work hours). If the successor employer determines that it needs fewer employees than were employed by the prior owner, the successor employer must retain incumbent employees based on seniority and/or the terms of any applicable collective bargaining agreement. During the 90-day retention period, the successor employer may not terminate a retained employee without cause.

2. Pay for On-Call Shifts

Employees must be provided with advance notice of on-call shifts under which they are required to be available. For each on-call shift that an employee is required to be available, but is not called in to work (with less than 24 hours’ notice that the shift has been cancelled or moved to another date or time), the employee is entitled to 2 hours of pay at his/her regular hourly rate for each on-call shift of 4 hours or less, and 4 hours of pay for each on-call shift of more than 4 hours. The same exceptions to the “predictability pay” requirements also apply to the on-call pay requirements.

3. Equal Treatment for Part-Time Employees

Employers are required to provide part-time employees (those working fewer than 35 hours per week) with the same starting hourly wage as that provided to full-time employees (those working 35 or more hours per week) who hold comparable positions. However, pay differentials are permissible if they are based on considerations other than the employee’s part-time status.

Employers are also required to provide part-time employees with the same access to paid and unpaid time off that is offered to full-time employees who are in the same job classification. However, a part-time employee’s eligibility for paid or unpaid time off may be pro-rated based on the number of hours that the employee works. Employers are also obligated to provide part-time employees with the same eligibility for promotions as full-time employees who are in the same job classification, even though the employer may condition promotion on the employee’s availability for full-time work and/or on reasons other than the employee’s part-time status.

The Retail Workers Bill of Rights also require that if an employer has a need for additional workers, before hiring new employees, using contractors, or retaining a temporary staffing agency, the employer must first offer the additional work to existing part-time employees if the existing employees are qualified to do the work, and the work is the same or similar to the type of work the employee already performs.

4. Advance Notice of Work Schedules and Changes

Before commencing with employment, the employer must provide a new employee with a good faith written estimate of the employee’s expected minimum number of scheduled shifts per month, and the days and hours of those shifts (not including on-call shifts). The employee may request a modification in the proposed schedule, which the employer is obligated to consider (but not required to accept), and respond to before the employee begins employment.

After being hired, the employer is required to provide employees with at least two weeks’ notice of their work schedules by doing one of the following at least every 14 days:

(1) Posting the work schedule in a readily accessible location in the workplace; or

(2) Electronically transmitting the work schedule to employees.

If the employer thereafter changes an employee’s schedule, the employer must provide the employee with notice of the change, along with “predictability pay” of 1 hour of pay at the employee’s regular rate if the change was made with more than 24 hours but less than 7 days of notice. If the employer makes a change with less than 24 hours’ notice, the employer must pay the employee 2 hours of pay at the employee’s regular rate for each changed shift of four hours or less, and 4 hours of pay for each changed shift that is more than four hours. “Predictability pay” is not required if the change is necessitated by certain acts beyond the employer’s control (e.g., electrical outage), or if:

(a) Another employee previously scheduled to work the shift is unable to work due to illness or use of PTO and did not give the employer at least 7 days’ notice of the absence;

(b) Another employee previously scheduled to work the shift fails to report to work and/or is fired or sent home as a disciplinary action;

(c) The change results only from an employer’s request to an employee to work overtime; or

(d) The employee requests and/or causes the change to his or her own schedule.

5. Notice and Recordkeeping

Covered employers are obligated to post a notice of employees’ rights under these new ordinances. The San Francisco Office of Labor Standards Enforcement (“OLSE”) will prepare and publish the required posters for employer use. Employers are also required to retain certain hiring and personnel records for three years and these records are subject to inspection by the OLSE.

Enforcement of the Retail Workers’ Bill of Rights

The OLSE possesses enforcement power over the Retail Workers’ Bill of Rights. As such, the OLSE may order compliance, impose administrative fines, and order employers to pay lost wages and penalties to employees, in addition to reimbursing the City of San Francisco for enforcement-related costs. The San Francisco City Attorney is also authorized to file civil actions against employers who violate the laws.

A fact sheet issued by the OLSE containing a summary of the above information along with some additional information can be found here.

This document is intended to provide you with general information about legal developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Steve Werth (415-697-3462 or swerth@aghwlaw.com) or Hannibal Odisho (415-697-3463 or hodisho@aghwlaw.com). This communication may be considered advertising in some jurisdictions.