Amended in Assembly June 1, 2015

Amended in Assembly May 1, 2015

Amended in Assembly April 27, 2015

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 Bill No. 357

Introduced by Assembly Members Chiu and Weber

(Principal coauthor: Senator Leyva)

(Coauthors: Assembly Members Bonta, Chu, Gonzalez, Roger Hernández, Rendon, begin delete and Thurmond end delete begin insert Thurmond, and Ting end insert )

begin insert

(Coauthors: Senators Hancock, Jackson, Mitchell, and Pavley)

end insert

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 least 2 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 also require a food and general retail establishment to allow 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 reasonable advance notice to the employer of 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. 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:

SECTION 1.  

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

SEC. 2.  

The Legislature finds and declares the following:

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

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

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

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

(e) According to census data, since 2006, the number of
“involuntary part time employees” in California nearly tripled to
1,100,000 employees. According to the federal Bureau of Labor
Statistics, less than one-half of the retail workforce nationwide
works full time, and the number of those working fewer than 20
hours per week has grown by 14 percent in the past decade.

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

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

SEC. 3.  

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

518.  

(a) (1) For purposes of this section, a “food and general
retail establishment” means a retail sales establishment that has a
physical location with in-person begin delete sales, end delete begin insert sales of food or merchandise
to ultimate consumers for personal, family, or householder
purposes, end insert including, but not limited to, a food retail store, a grocery
store, a general merchandise store, a department store, and a health
and personal care store, that meets all of the following:

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

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

(C) Maintains two or more of the following:

(i) A standardized array of merchandise.

(ii) A standardized facade.

(iii) A standardized decor and color scheme.

(iv) Uniform apparel.

(v) Standardized signage.

(vi) A trademark or a service mark.

(2) A “food and general retail establishment” does not include
a retail establishment where the provision of customer service is
the primary activity of the establishment and any sale of
merchandise is secondary or incidental to that service, an online
retailer that does not have a physical location with in-person sales
in this state, begin delete or end delete a franchise, as defined in Section 31005 of the
Corporations Code, that does not meet subparagraphs (A) to (C),
inclusive, of paragraph begin delete (1). end delete begin insert (1), or a new motor vehicle dealer, as
defined in Section 426 of the Vehicle Code. end insert

begin insert

(3) For purposes of this section, “merchandise” means material
goods or consumables.

end insert begin delete

(3)

end delete

begin insert (4) end insert  This section does not apply to an employee who is exempt
from the payment of an overtime rate of compensation for
executive, administrative, and professional employees pursuant to
wage orders by the Industrial Welfare Commission described in
Section 515.

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

(c) A food and general retail establishment shall provide an
employee with the following compensation, per shift, 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:

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

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

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

(4) When an employee is required to come into work by a food
and general retail establishment, the compensation required by
this subdivision shall be in addition to the employee’s regular pay
for working that shift. This paragraph does not apply to subdivision
(f).

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

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

(f) A food and general retail establishment shall provide an
employee with the following compensation for each on-call shift
for which the employee is required to be available but is not called
in to work:

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

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

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

(h) The requirements in subdivisions (c) and (f) shall not apply,
and an employer shall not be deemed to have violated subdivision
(b), under any of the following circumstances:

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

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

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

(4) Another employee previously scheduled to work that shift
is unable to work due to illness, vacation, or employer-provided
paid or unpaid time off required by existing law when the food
and general retail establishment did not receive at least seven days’
notice of the other employee’s absence.

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

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

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

(i) The Labor Commissioner shall promulgate all regulations
and rules of practice and procedures necessary to carry out the
provisions of this section.

(j) A violation of this section shall not be a misdemeanor under
Section 553.

(k) This section shall not be construed to prohibit a food and
general retail establishment from providing greater advance notice
of an employee’s work schedule or changes in an employee’s work
schedule than what is required by this section.

SEC. 4.  

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

519.  

(a) A food and general retail establishment, as defined
in Section 518, shall allow an employee to be absent from work
without pay for up to eight hours twice a year, upon request, to
attend any required appointments at the county human services
agency.

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

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

(d) The Labor Commissioner shall promulgate all regulations
and rules of practice and procedures necessary to carry out the
provisions of this section.

(e) A violation of this section shall not be a misdemeanor under
Section 553.

SEC. 5.  

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

11320.31.  

Sanctions shall not be applied 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, including, but not limited to, the following
reasons:

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

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

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

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

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

(f) Accepting the employment or work activity would cause an
interruption in an approved education or job training program in
progress that would otherwise lead to employment and sufficient
income to be self-supporting, excluding work experience or
community service employment as described in subdivisions (d)
and (j) of Section 11322.6 and Section 11322.9 or other community
work experience assignments, except that a recipient may be
required to engage in welfare-to-work activities to the extent
necessary to meet the hours of participation required by Section
11322.8.

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

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

SEC. 6.  

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