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San Jose Enacts Scheduling Ordinance

Certain Small Businesses Exempt from Coverage

Voters in San Jose have approved a new ordinance that affects employers’ scheduling practices. Highlights of the ordinance are presented below.

Access to Hours of Work for Existing Part-Time Employees
Before hiring additional employees or subcontractors (including hiring through the use of temporary services or staffing agencies) a covered employer must offer additional hours of work to existing part-time employees who, in the employer’s good faith and reasonable judgment, have the skills and experience to perform the work, and must use a transparent and nondiscriminatory process to distribute the hours of work among those existing employees.

Note: The ordinance does not require any covered employer to offer an employee work hours if the employer would be required to compensate the employee at time and ½ or other premium rate under any law or collective bargaining agreement (nor does it prohibit any employer from offering such work hours).

Scope of Coverage
A local business enterprise that has 35 or fewer total employees is exempt from these provisions, except that:

  • For a chain business that is not owned by a franchisee, the number of employees for purposes of qualifying as a small business enterprise is determined by the combined total number of employees at every location of that chain business—whether or not located in the city.
  • For a franchisee, the number of employees for purposes of qualifying as a small business enterprise is determined by the combined total number of employees at every location owned by that franchisee and operated under the same franchise—whether or not located in the city.

Note: The ordinance also contains a hardship exemption for up to 12 months for an employer who demonstrates that it has undertaken in good faith all reasonable steps to comply, and full and immediate compliance would be impracticable, impossible, or futile.

Notice and Recordkeeping

  • The city is expected to publish (and employers must post) a notice of employee rights under the ordinance.
  • Covered employers must maintain the following records (in addition to existing recordkeeping requirements) for 4 years:
    • For any new hire of employees or subcontractors, documentation of the offer of additional hours of work to existing employees prior to completing the hire;
    • Employee work schedules; and
    • Any other records the city requires.

The ordinance takes effect on the 90th day after it is certified. Click here (Exhibit A) to read the text of the ordinance for additional provisions.

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