December 4, 2014

A Special Black Friday in San Francisco: Unique Ordinance To Regulate Retail Work Schedules

Seller Beware: Consumer Protection Insights for Industry

As retail stores throughout the city prepared for Black Friday sales last week, the San Francisco Board of Supervisors unanimously passed a one-of-a-kind ordinance designed to protect employees from erratic work schedules. If signed by Mayor Ed Lee―which is almost certain―the ordinance, known as the Retail Workers Bill of Rights, will likely take effect this summer. The new law will have a significant impact on San Francisco's chain retail employers, defined as retail employers with 20 or more employees within San Francisco and 11 or more locations nationwide.

The Retail Workers Bill of Rights requires San Francisco's chain retailers to post employees' schedules at least two weeks in advance and to provide advance notice of any changes to employees' schedules. Employers who make scheduling changes on fewer than seven days' notice must give "predictability pay" to employees affected by the change. Chain retail employers will also be obligated to offer part-time employees the same starting hourly wage as full-time employees "who hold jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions …" Part-time employees must also have access to the same paid and unpaid time off and be eligible for the same promotions afforded to full-time employees in the same job classification. Employers may pro-rate this time, however, and will not be forced to contravene existing seniority or merit systems. Another critical provision of the ordinance requires employers to offer current part-time employees any additional, available, hours of work before hiring new employees, contractors, or temporary workers to do the job.

The ordinance will be enforced by San Francisco's Office of Labor Standards Enforcement, which may conduct investigations and impose civil penalties.

Hailed by labor advocates as groundbreaking, the Retail Workers Bill of Rights will not be without challenges for retail employers. For example, many employers rely on computer software to create work schedules. To avoid "predictability pay" and other civil penalties, employers will need to coordinate with their software providers to ensure that their software is compliant with the new ordinance. Employers may also consider revisiting their existing policies concerning time off from work. Because the ordinance requires that employers post schedules at least two weeks in advance, employers will want to ensure that employees are required to provide ample notice of any predictable time off or other scheduling conflicts. Retail employers should also maintain copies of all schedules for a minimum of three years, in accordance with the law's recordkeeping requirements.

The City of San Francisco is often at the forefront of employment law trends, so employers can expect to see similar legislation crop up in other cities. Lawmakers in Milwaukee, New York, and Santa Clara are already looking at similar bills. Congress has also taken note of the Retail Workers Bill of Rights, and although federal legislative action is unlikely, the issue of work schedules is likely to be on the agenda of employee advocates for the foreseeable future..

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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