Amended in Assembly April 16, 2015

Amended in Assembly April 6, 2015

Amended in Assembly March 25, 2015

Amended in Assembly March 12, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 357


Introduced by Assembly Members Chiu and Weber

(Principal coauthor: Senator Leyva)

(Coauthors: Assembly Members Bonta, Chu, Gonzalez, Roger Hernández, Rendon, and Thurmond)

February 17, 2015


An act to add Sections 518 and 519 to the Labor Code, and to amend Section 11320.31 of the Welfare and Institutions Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 357, as amended, Chiu. Employment: work hours: Fair Scheduling Act of 2015.

Existing law, with certain exceptions, establishes 8 hours as a day’s work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including wage claims. Existing federal law provides for the allocation of federal funds through the federal Temporary Assistance for Needy Families (TANF) block grant program to eligible states, with California’s version of this program known as the California Work Opportunity and Responsibility to Kids (CalWORKs) program. Under the CalWORKs program, each county provides cash assistance and other benefits to qualified low-income families and individuals, and is prohibited from applying sanctions upon a recipient of CalWORKs for a failure or refusal to comply with program requirements for reasons related to employment, an offer of employment, an activity, or other training for employment for specified reasons, including, but not limited to, that the employment, offer of employment, or work activity does not provide workers’ compensation insurance. Existing law establishes a statewide program to enable eligible low-income persons to receive food stamps under the federal Supplemental Nutrition Assistance Program (SNAP), known in California as CalFresh, and requires counties to implement the program.

This bill would make legislative findings and declarations relating to work hour scheduling for employees of food and general retail establishments. The bill would require a food and general retail establishment, as defined, to provide its employees with at leastbegin delete twoend deletebegin insert 2end insert weeks’ notice of their schedules. The bill would require a food and general retail establishment to pay those employees additional pay, as specified, for each previously scheduled shift that the food and general retail establishment moves to another date or time or cancels and each previously unscheduled shift that the food and general retail establishment requires an employee to work, and would also require a food and general retail establishment to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work. The bill would specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the food and general retail establishment’s control. The bill would prohibit a food and general retail establishment from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive, benefits under the CalWORKs program or a person who receives benefits under CalFresh. The bill would also require an employer to allowbegin delete suchend delete an employee to, upon request, be absent from work without pay for up to 8 hours twice a year to attend any required appointments at the county human services agency, provided that the employee gives reasonablebegin insert advanceend insert notice to the employer ofbegin delete the planned absence from work prior to taking time off of work.end deletebegin insert his or her intention to take time off, unless advance notice is not feasible. The bill would prohibit an employer from taking any action against an employee when an unscheduled absence occurs due to a required appointment at the county human services agency if that employee provides specified documentation from the county human services agency.end insert The bill would require the Labor Commissioner to promulgate all regulations and rules of practice and procedure necessary to carry out these provisions. The bill would also prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.

Existing law continuously appropriates moneys from the General Fund to defray a portion of county costs under the CalWORKs program.

This bill would instead provide that the continuous appropriation would not be made for purposes of implementing the bill.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

This act shall be known, and may be cited, as the
2Fair Scheduling Act of 2015.

3

SEC. 2.  

The Legislature finds and declares the following:

4(a) More than one-half of food and general retail store employees
5nationally receive their work schedules one week or less in
6advance.

7(b) According to a recent survey of employees at chain stores
8and large stores, only 40 percent of those surveyed have consistent
9minimum hours per week and the vast majority of employees find
10out from a supervisor if they are needed for the on-call shift a mere
11two hours before the shift starts. Retail industry research in New
12York City found that more than one-half of family caregivers in
13the retail industry are required to be available for on-call shifts,
14forcing them to arrange for child or elder care at the last minute.

15(c) Women are also more likely than men to work part time and
16experience unpredictability in their work schedules; one study
17found that women were 64 percent of the frontline part-time
18workforce among retail workers.

19(d) Unpredictable scheduling practices and last-minute work
20schedule changes cause workers who are already struggling with
21low wages to live in a constant state of insecurity about when they
P4    1will work or how much they will earn on any given day. These
2practices also make it hard for employees to plan their finances
3and to plan for and obtain child care. These practices also prevent
4part-time employees from pursuing educational opportunities or
5holding a second or third job that those workers may need to make
6ends meet.

7(e) According to census data, since 2006, the number of
8“involuntary part time employees” in California nearly tripled to
91,100,000 employees. According to the federal Bureau of Labor
10Statistics, less than one-half of the retail workforce nationwide
11works full time, and the number of those working fewer than 20
12hours per week has grown by 14 percent in the past decade.

13(f) According to a survey conducted in 2014 of workers who
14sell food in California, the largest producer of food in the United
15States, they are twice as likely as the general populace to be unable
16to afford sufficient quantities of the food they sell or the healthy
17kinds of food their families need, despite the financial health of
18the food retail industry. According to this same survey, workers
19who were Black or Latino were far more likely to be sent home
20early with no pay, to have a shift canceled on the same day it is
21scheduled, to not be offered a lunch break, or not be paid for all
22hours worked.

23(g) For these reasons, to ensure family and financial stability
24for a vast segment of California’s workforce, those employed by
25food and general retail establishments should be afforded some
26predictability and dignity in how they are scheduled to work.

27

SEC. 3.  

Section 518 is added to the Labor Code, to read:

28

518.  

(a) (1) For purposes of this section, a “food and general
29retail establishment” means a retail sales establishment that has a
30physical location with in-person sales, including, but not limited
31to, a food retail store, a grocery store, a general merchandise store,
32a department store, and a health and personal care store, that meets
33all of the following:

34(A) Has 500 or more employees in this state.

35(B) Has 10 or more other such retail sales establishments located
36in the United States of America.

37(C) Maintains two or more of the following:

38(i) A standardized array of merchandise.

39(ii) A standardized facade.

40(iii) A standardized decor and color scheme.

P5    1(iv) Uniform apparel.

2(v) Standardized signage.

3(vi) A trademark or a service mark.

4(2) A “food and general retail establishment” does not include
5an online retailer that does not have a physical location with
6in-person sales in this state or a franchise, as defined in Section
731005 of the Corporations Code, that does not meet subparagraphs
8(A) to (C), inclusive, of paragraph (1).

begin insert

9(3) This section does not apply to an employee who is exempt
10from the payment of an overtime rate of compensation for
11executive, administrative, and professional employees pursuant
12to wage orders by the Industrial Welfare Commission described
13in Section 515.

end insert

14(b) A food and general retail establishment shall provide its
15employees with at least two weeks’ notice of their work schedules.

16(c) A food and general retail establishment shall provide an
17employee with the following compensation, per shift, for each
18previously scheduled shift that the food and general retail
19establishment moves to another date or time or cancels, and each
20previously unscheduled shift that the food and general retail
21establishment requires an employee to work:

22(1) One hour of pay at the employee’s regular hourly rate if less
23than seven days’ notice but at least 24 hours’ notice is given to the
24employee.

25(2) Two hours of pay at the employee’s regular hourly rate for
26each shift of four hours or less if less than 24 hours’ notice is given
27to the employee.

28(3) Four hours of pay at the employee’s regular hourly rate for
29each shift of more than four hours if less than 24 hours’ notice is
30given to the employee.

31(4) When an employee is required to come into work by a food
32and general retail establishment, the compensation required by
33this subdivision shall be in addition to the employee’s regular pay
34for working that shift. This paragraph does not apply to subdivision
35begin delete (d).end deletebegin insert (f).end insert

begin insert

36(d) Subdivision (c) shall not apply to shifts for which the
37employee is compensated with reporting time pay as required by
38any wage order of the Industrial Welfare Commission.

end insert
begin insert

39(e) Subdivision (c) shall not apply to changes in the scheduling
40of rest periods, recovery periods, or meal periods.

end insert
begin delete

P6    1(d)

end delete

2begin insert(end insertbegin insertf)end insert A food and general retail establishment shall provide an
3employee with the following compensation for each on-call shift
4for which the employee is required to be available but is not called
5in to work:

6(1) Two hours of pay at the employee’s regular hourly rate for
7each on-call shift of four hours or less.

8(2) Four hours of pay at the employee’s regular hourly rate for
9each on-call shift of more than four hours.

begin insert

10(g) Subdivision (f) shall not apply to on-call time that is required
11to be compensated as hours worked and for which the employee
12is in fact compensated under existing law.

end insert
begin delete

13(e)

end delete

14begin insert(h)end insert The requirements in subdivisions (c) andbegin delete (d)end deletebegin insert (f)end insert shall not
15apply under any of the following circumstances:

16(1) Operations cannot begin or continue due to threats to
17employees or property, or when civil authorities recommend that
18work not begin or continue.

19(2) Operations cannot begin or continue because public utilities
20fail to supply electricity, water, or gas, or there is a failure in the
21public utilities or sewer system.

22(3) Operations cannot begin or continue due to an act of God
23or other cause not within the food and general retail establishment’s
24control, including, but not limited to, an earthquake or a state of
25emergency declared by a local government or the Governor.

26(4) Another employee previously scheduled to work that shift
27is unable to work due to illness, vacation, or employer-provided
28paid or unpaid time off required bybegin delete this codeend deletebegin insert existing lawend insert when
29the food and general retail establishment did not receive at least
30seven days’ notice of the other employee’s absence.

31(5) Another employee previously scheduled to work that shift
32has not reported to work on time, is fired, sent home, or told to
33stay at home as a disciplinary action.

34(6) The food and general retail establishment requires the
35employee to work overtime, such as mandatory overtime.

36(7) The employee trades shifts with another employee or
37requests from the food and general retail establishment a change
38in his or her shift, hours, or work schedule.

begin delete

39(f)

end delete

P7    1begin insert(i)end insert The Labor Commissioner shall promulgate all regulations
2and rules of practice and procedures necessary to carry out the
3provisions of this section.

begin delete

4(g)

end delete

5begin insert(j)end insert A violation of this section shall not be a misdemeanor under
6Section 553.

begin delete

7(h)

end delete

8begin insert(end insertbegin insertk)end insert This section shall not be construed to prohibit a food and
9general retail establishment from providing greater advance notice
10of an employee’s work schedule or changes in an employee’s work
11schedule than what is required by this section.

12

SEC. 4.  

Section 519 is added to the Labor Code, to read:

13

519.  

(a) begin insert(1)end insertbegin insertend insert A food and general retail establishment, as
14defined in Section 518, shall not discharge or discriminate against
15an employee because he or she is any of the following:

begin delete

16(1)

end delete

17begin insert(end insertbegin insertA)end insert A person who receives CalWORKs cash aid.

begin delete

18(2)

end delete

19begin insert(end insertbegin insertB)end insert A parent, guardian, or grandparent who has custody of one
20or more children who receive CalWORKs cash aid.

begin delete

21(3)

end delete

22begin insert(C)end insert A person who receives CalFresh food assistance.

begin delete

23(b)

end delete

24begin insert(end insertbegin insert2)end insert A food and general retail establishment, as defined in Section
25518, shall allow an employee begin delete described in subdivision (a)end delete to be
26absent from work without pay for up to eight hours twice a year,
27upon request, to attend any required appointments at the county
28human servicesbegin delete agency, provided that the employee gives
29reasonable notice to the employer of the planned absence prior to
30taking the time off.end delete
begin insert agency.end insert

begin insert

31(b) As a condition of taking time off for a purpose set forth in
32subdivision (a), the employee shall give the employer reasonable
33advance notice of the employee’s intention to take time off, unless
34the advance notice is not feasible.

end insert
begin insert

35(c) An employer shall not take any action against an employee
36when an unscheduled absence occurs due to a required
37appointment at the county human services agency if that employee,
38within a reasonable time, provides documentation to the employer
39from the county human services agency documenting the required
40appointment.

end insert
begin delete

P8    1(c)

end delete

2begin insert(end insertbegin insertd)end insert The Labor Commissioner shall promulgate all regulations
3and rules of practice and procedures necessary to carry out the
4provisions of this section.

begin delete

5(d)

end delete

6begin insert(e)end insert A violation of this section shall not be a misdemeanor under
7Section 553.

8

SEC. 5.  

Section 11320.31 of the Welfare and Institutions Code
9 is amended to read:

10

11320.31.  

Sanctions shall not be applied for a failure or refusal
11to comply with program requirements for reasons related to
12employment, an offer of employment, an activity, or other training
13forbegin delete employmentend deletebegin insert employment,end insert including, but not limited to, the
14following reasons:

15(a) The employment, offer of employment, activity, or other
16training for employment discriminates on any basis listed in
17subdivision (a) of Section 12940 of the Government Code, as those
18bases are defined in Sections 12926 and 12926.1 of the
19Government Code, except as otherwise provided in Section 12940
20of the Government Code.

21(b) The employment or offer of employment exceeds the daily
22or weekly hours of work customary to the occupation.

23(c) The employment, offer of employment, activity, or other
24training for employment requires travel to and from the place of
25employment, activity, or other training and one’s home that exceeds
26a total of two hours in round-trip time, exclusive of the time
27necessary to transport family members to a school or place
28providing care, or, when walking is the only available means of
29transportation, the round-trip is more than two miles, exclusive of
30the mileage necessary to accompany family members to a school
31or a place providing care. An individual who fails or refuses to
32comply with the program requirements based on this subdivision
33shall be required to participate in community service activities
34pursuant to Section 11322.9.

35(d) The employment, offer of employment, activity, or other
36training for employment involves conditions that are in violation
37of applicable health and safety standards.

38(e) The employment, offer of employment, or work activity
39does not provide for workers’ compensation insurance.

P9    1(f) Accepting the employment or work activity would cause an
2interruption in an approved education or job training program in
3progress that would otherwise lead to employment and sufficient
4income to be self-supporting, excluding work experience or
5community service employment as described in subdivisions (d)
6and (j) of Section 11322.6 and Section 11322.9 or other community
7work experience assignments, except that a recipient may be
8required to engage in welfare-to-work activities to the extent
9necessary to meet the hours of participation required by Section
1011322.8.

11(g) Accepting the employment, offer of employment, or work
12activity would cause the individual to violate the terms of his or
13her union membership.

14(h) The employment or offer of employment fails to comply
15with the Fair Scheduling Act of 2015 (Sections 518 and 519 of the
16Labor Code).

17

SEC. 6.  

No appropriation pursuant to Section 15200 of the
18Welfare and Institutions Code shall be made for purposes of
19implementing this act.



O

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