BILL ANALYSIS Ó
AB 357
Page 1
ASSEMBLY THIRD READING
AB
357 (Chiu and Weber)
As Amended June 1, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+---------------------+---------------------|
|Labor |4-3 |Roger Hernández, |Harper, Low, |
| | |Chu, McCarty, |Patterson |
| | |Thurmond | |
| | | | |
|----------------+------+---------------------+---------------------|
|Appropriations |11-6 |Gomez, Bonta, |Bigelow, Chang, |
| | |Calderon, Eggman, |Daly, Gallagher, |
| | |Eduardo Garcia, |Jones, Wagner |
| | |Gordon, Holden, | |
| | |Quirk, Rendon, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Enacts the Fair Scheduling Act of 2015 to provide
predictable work schedules to covered employees, as specified, in
addition to other requirements. Specifically, this bill:
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1)Requires a "food and general retail establishment" to provide
its employees with at least two weeks' notice of their work
schedules.
2)Defines "merchandise" to mean material goods or consumables.
3)Defines a "food and general retail establishment" to mean a
retail sales establishment that has a physical location with
in-person sales of food or merchandise to ultimate consumers for
personal, family, or householder purposes, 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, 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.
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.
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v) Standardized signage.
vi) A trademark or a service mark.
4)Excludes from the definition of "food and general retail
establishment" 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, a franchise that
does not meet the aforementioned criteria, or a new motor
vehicle dealer.
5)Provides that this requirement does not apply to specified
employees who are exempt from the payment of overtime under
existing law.
6)Provides that 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:
a) 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.
b) 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.
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c) 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.
7)Provides that the aforementioned compensation requirement shall
not apply for shifts for which the employee is compensated with
reporting time pay as required by any wage order of the
Industrial Welfare Commission.
8)Provides that the aforementioned compensation requirement shall
not apply to changes in the scheduling of rest periods, recovery
periods, or meal periods.
9)Requires a food and general retail establishment to 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:
a) Two hours of pay at the employee's regular hourly rate for
each on-call shift of four hours or less.
b) Four hours of pay at the employee's regular hourly rate
for each on-call shift of more than four hours.
10)Provides that the aforementioned compensation requirement
related to on-call time shall not apply to on-call time that is
required to be compensated as hours worked for which the
employee is in fact compensated under existing law.
11)Establishes exceptions to these compensation requirements under
any of the following circumstances:
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a) Operations cannot begin or continue due to threats to
employees or property, or when civil authorities recommend
that work not begin or continue.
b) 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.
c) 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.
d) 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.
e) 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.
f) The food and general retail establishment requires the
employee to work overtime, such as mandatory overtime.
g) 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.
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12)Requires the Labor Commissioner shall promulgate all
regulations and rules of practice and procedures necessary to
carry out the provisions of this bill.
13)Specifies that this bill 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 bill.
14)Requires a food and general retail establishment to allow an
employee 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.
15)Provides that as a condition of taking such time off, 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.
16)Prohibits 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, within a reasonable time, provides documentation to
the employer documenting the required appointment.
17)Prohibits sanctions from being applied upon a recipient of The
California Work Opportunity and Responsibility to Kids
(CalWORKs) for failure or refusal to comply with CalWORKs
program requirements if the employment or offer of employment
fails to comply with these provisions.
18)Makes other related and conforming changes.
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19)Contains legislative findings and declarations.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, estimating the number of wage and retaliation claims
the Department of Industrial Relations (DIR) will receive is
difficult to predict. Based on the number of businesses and
employees affected by this bill, DIR estimates costs in the range
of $1 million to $2.8 million (Labor Enforcement and Compliance
Fund) to cover personnel costs associated with processing claims.
Recent data suggest there are approximately 2,465 employers with
500 or more employees in California, though not all are "food or
general retail establishments."
COMMENTS: According to the author, 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 be
paid on any given day. Therefore, this bill will provide food and
retail workers in California with the right to schedule
predictability and protect workers in a number of important ways.
This bill would enact the Fair Scheduling Act of 2015, and is
based on an ordinance recently enacted in San Francisco.
This bill is co-sponsored by the United Food and Commercial
Workers Western States Council and the Western Center on Law and
Poverty. They argue that 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 be paid
on any given day. The instability of day-by-day scheduling not
only makes it difficult for employees to plan their finances, it
also makes it difficult to secure and maintain child care and
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contributes to parental stress, family instability, and has been
documented as resulting in poor school performance among these
workers' children.
A coalition of employers, including the California Chamber of
Commerce and the California Retailers Association, opposes this
measure and argues that it represents a one-size fits all mandate
on only California retailers, will significantly increase such
employers cost of doing business, and will limit their opportunity
to provide flexibility to employees as well as offer additional
hours of work, as doing so will expose the employer to litigation
and statutory penalties.
Analysis Prepared by:
Ben Ebbink / L. & E. / (916) 319-2091 FN: 0000574