BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 878 (Leyva) - Work hours: scheduling
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|Version: March 15, 2016 |Policy Vote: L. & I.R. 4 - 1 |
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|Urgency: No |Mandate: No |
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|Hearing Date: April 25, 2016 |Consultant: Robert Ingenito |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 878 would provide predictable work schedules to covered
employees, as specified, in addition to other requirements.
Fiscal
Impact: The Department of Industrial Relations (DIR) estimates
that it would incur annual implementation costs ranging from $1
million to $3.6 million (special fund).
Background: Low-wage workers are generally more likely to be
paid hourly, work less than full time, and have erratic
schedules with little advance notice of when they are expected
to work. Increasingly used in the service sector, just-in-time
(JIT) scheduling, also called "scheduling to demand," is a
practice that closely links labor supply to consumer demand.
Increasingly used in the service sector, employers rely on
scheduling software and measures of demand (such as floor
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traffic, sales volume, hotel registrations, dinner reservations,
or the weather) to match workers' hours to labor needs. Weekly
schedules are sometimes posted with just a few days notice and
last minute schedule changes are made often resulting in workers
showing up for work only to be sent home, being asked to stay
beyond a scheduled shift, or being called in on a day off. Some
employers change posted schedules at the last minute even if it
means sending workers home after they arrive for work or asking
them to stay beyond the end of their shift. Such practices can
complicate the lives of workers and their families, especially
with respect to child care arrangements, transportation, and
working more than one job.
In December 2014, San Francisco passed the "Retail Workers Bill
of Rights," which included two ordinances regulating hours,
retention, scheduling, and treatment of part-time employees at
some Formula Retail Establishments. The ordinances, which took
effect on March 1, 2016 and apply to formula retail
establishments with at least 40 locations worldwide and 20 or
more employees in San Francisco as well as their janitorial and
security contractors, included a component regarding predictive
scheduling that required, among other things, the following:
Initial Estimate of Work Schedule - employers provide
new employees with written estimate of the employee's
expected minimum number of scheduled shifts per month and
the days and hours of those shifts.
Two Week's Notice of Work Schedules - Schedules may be
posted in the workplace or provided electronically.
Predictability Pay for Schedule Changes - Changes to an
employee's schedule with less than seven days' notice
requires 1 to 4 hours of pay at the employee's regular
hourly rate (depending on the amount of notice and the
length of the shift).
Pay for on Call Shifts - For "on-call" employees not
called in to work, the employer must pay 2 to 4 hours of
pay at the employee's regular hourly rate.
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Exceptions - Employers do not have to provide
"predictability pay" or payment for on-call shifts for
specified circumstances outside of the employer's control,
including the exceptions delineated under the provisions of
this bill.
Proposed Law:
This bill would enact the Reliable Scheduling Act of 2016 to
provide predictable work schedules to covered employees, as
specified, in addition to other requirements. Specifically, the
bill would, among other things, do the following:
Require employers of a restaurant, grocery or retail
store, as defined, to provide a work schedule listing all
shifts for all employees for at least 21 consecutive days
at least seven days prior to the first shift on that work
schedule.
Require modification pay, as defined, to be calculated
based on an employee's hourly wage by dividing the
employee's total wages, not including overtime premium pay,
by the employee's total hours worked in the full pay
periods of the prior 90 days of work.
Require an employer to provide modification pay, per
shift, for each previously scheduled shift that the
employer cancels or moves to another date or time or for
any previously unscheduled shift that the employer requires
an employee to work as follows:
o If less than 7 days' notice but more than 24
hours: modification pay equal to or greater than one
hour at the employee's regular rate of pay.
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o If less than 24 hours' notice: modification
pay equal to or greater than half of that shift's
scheduled hours at the employee's regular rate of pay,
but in no event less than two hours nor more than four
hours.
o Modification pay required shall be in addition
to an employee's regular pay for working that shift.
Specify that for each on-call shift, as defined, for
which an employee is required to be available but is not
called in to work, the employer must pay modification pay
equal to or greater than half of that shift's scheduled
hours at the employee's regular rate of pay.
Authorize employers to create separate work schedules
for each department as long as all hours have a designated
beginning and ending time.
Specify that these provisions do not prohibit an
employer from providing greater advance notice of an
employee's work schedule or changes in an employee's work
schedule, and that these provisions shall not prohibit an
employee from requesting additional or fewer hours of work.
Specify that modification pay shall not apply to changes
in the scheduling of rest periods, recovery periods, or
meal periods.
Specify that modification pay does not apply for shifts
for which an employee is compensated with reporting time
pay as required by any wage order.
Provide that the modification pay requirements do not
apply, and an employer shall not be deemed to have violated
these requirements, under specified circumstances.
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Require employers to display a poster in a conspicuous
place in each workplace that contains information regarding
modification pay, as well as information regarding an
employee's right to file a complaint with the Labor
Commissioner for retaliation or discrimination claims.
Specify that failure by an employer to display the above
referenced poster shall subject the employer to a civil
penalty of not more than $100 for each offense.
Require employers to keep records documenting the hours
worked and modification pay awarded to each employee for at
least three years, as well as allow employees and the Labor
Commissioner access to these records as required by current
law.
Prohibit an employer from discharging, threatening to
discharge, demote, suspend, or in any manner discriminate
against an employee for filing a complaint or alleging a
violation of these provisions, cooperating in an
investigation or prosecution of an alleged violation, or
opposing any policy, practice or act that is prohibited by
law.
Provide that there shall be a rebuttable presumption of
unlawful retaliation if an employer discharges, threatens
to discharge, demotes, suspends, or in any manner
discriminates against an employee within 30 days of the
above referenced protected activity.
Require the Labor Commissioner to enforce these
provisions, including investigating an alleged violation
and ordering appropriate temporary relief to mitigate the
violation or to maintain the status quo, pending the
completion of a full investigation or hearing.
Authorize the Labor Commissioner, if a violation has
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occurred, to order any appropriate relief to the employee,
including, but not limited to, the following:
o Reinstatement, backpay, the payment of
modification pay unlawfully withheld, and the payment
of an additional sum in the form of an administrative
penalty.
o If modification pay was unlawfully withheld,
the dollar amount of modification pay withheld
multiplied by three or two hundred fifty dollars
($250), whichever amount is greater, but not to exceed
an aggregate penalty of four thousand dollars
($4,000), shall be included in the administrative
penalty.
o If a violation of this section results in
other harm to the employee or person, such as
discharge from employment, the administrative penalty
shall include a sum of fifty dollars ($50) for each
day or portion thereof that the violation occurred or
continued, not to exceed an aggregate penalty of four
thousand dollars ($4,000).
o If no prompt employer compliance, the Labor
Commissioner can take any appropriate enforcement
action including the filing of a civil action and in
compensation to the state for the costs of
investigating and remedying the violation, the
commissioner may order the employer to pay the state
$50 for each day a violation occurs or continues for
each employee.
Authorize the Labor Commissioner, the Attorney General,
an aggrieved employee or his/her representing entity to
bring a civil action against the employer and upon
prevailing, the employee is entitled to collect legal or
equitable relief as may be appropriate to remedy the
violation as well as the previously described remedies and
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penalties, and reasonable attorney's fees and costs.
Provide that in an administrative or civil action
brought, the Labor Commissioner or court, as the case may
be, shall award interest on all amounts due and unpaid at
the rate of interest specified in subdivision (b) of
Section 3289 of the Civil Code.
Provide that the remedies, penalties, and procedures
provided are cumulative.
Specify that the Labor Commissioner may promulgate all
regulations and rules of practice and procedures necessary
to carry out the provisions of this bill.
1) Specify that a violation of these provisions shall not
be a misdemeanor.
Related
Legislation: AB 357 (Chiu, 2015) would have enacted the Fair
Scheduling Act of 2015 to require a "food and general retail
establishment" to provide its employees with at least two weeks'
notice of their work schedules. The bill applied to food and
retail establishments with 500 or more employees in the state
and that has 10 or more retail stores located in the United
States. Among other things, the bill included a requirement that
employers pay employees additional pay, as specified, for
scheduled shift changes and for each on-call shift for which the
employee is required to be available but is not called in to
work. The bill included a provision allowing an employee to be
absent from work without pay for up to 8 hours twice per year to
attend required health appointments. The bill was never taken up
for an Assembly Floor vote and died on its Inactive File.
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Staff
Comments: Estimating the number of wage and retaliation claims
DIR would receive under this bill will receive is difficult to
predict. With respect to AB 357, DIR estimated costs in the
range of $1 million to $2.8 million to cover personnel costs
associated with processing claims.
This bill would affect a larger category of employers and
employees, and also has more expansive retaliation protections.
Consequently, DIR's estimates implementation costs would be a
range of $1 million to $3.6 million in additional staffing to
handle additional wage and retaliation claims as a result of
this bill.
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