Predictable Scheduling Arriving Soon in the City of Angels
The City of Los Angeles recently passed a Fair Work Week Ordinance (FWWO) that has been signed by the Mayor and will take effect April 1, 2023. The FWWO applies to large retail employers in the City of Los Angeles, and imposes significant requirements regarding scheduling and predictability pay, among other things.
Who is Covered?
Covered employers include those in the “retail trade,” as defined by North American Industry Classification System (NAICS) categories 44-45, who employ at least 300 persons globally. The “retail trade” is broadly defined by NAICS to include automotive sales, construction supply sales, food/beverage, and many other categories of merchandise sales. Temps, staffing agency workers, workers at certain subsidiaries and some franchise employees must be counted toward the 300-employee requirement.
Covered employees are those who are entitled to payment of minimum wage and perform at least two hours of work per week within the City of Los Angeles.
- Written, Good-Faith Schedule Estimates. New hires must receive a written, good-faith estimate of their work schedule and rights under the FWWO. Current employees are also entitled to a written, good-faith estimate of their schedule within ten days of requesting it. If actual work hours deviate substantially from the estimate, the employer must document a legitimate business reason for the deviation, which was unknown at the time of the estimate.
- Employee's Right to Request Schedule Changes. Employees may request a preference for certain hours, times, or locations of work. Denials must be in writing.
- Advance Notice of Work Schedule. Employees must be given 14 calendar days’ written notice of work schedules. Any subsequent changes to the schedule require written notice, and the employee may decline the change. If the employee voluntarily agrees to the change, consent must be in writing.
- Additional Work Must Be Offered to Current Employees Before Hiring. Employers must offer additional work hours to current employees before hiring new employees or using a contractor, temporary service, or staffing agency to perform the work, if (1) one or more of the current employees is qualified to do the work, and (2) the additional work would not result in overtime pay. Written notice of available work must be posted for at least 72 hours before hiring a new employee, unless all current employees decline. Employees must be provided 48 hours to accept the offer of additional work upon receipt.
- Predictability Pay for Work Schedule Changes. Employees are entitled to “predictability pay” for the following:
- One hour of pay at the employee’s regular rate for each change in date, time, or location that (1) does not result in a loss of hours; or (2) results in additional hours exceeding 15 minutes.
- Pay at one-half of the employee’s regular rate of pay for the time the employee does not work if the employer cuts the employee’s schedule by 15 minutes or more.
Exceptions: Predictability pay does not apply when: (1) an employee requests a schedule change; (2) an employee accepts a schedule change initiated by the employer due to an absence of another scheduled employee; (3) an employee accepts additional work hours offered by the employer; (4) an employee’s hours are reduced due to employee’s violation of law or employer’s policies; (5) an employer’s operations are compromised by law or force majeure; or (6) extra hours worked require the payment of overtime.
- Coverage for Missing Work Shift. Employees cannot be required to find coverage for a shift if unable to work for reasons protected by law.
- Rest Between Shifts. Employees cannot be scheduled to work a shift starting less than ten hours from their last shift without written consent. Employees must be paid time-and-a-half for each shift not separated by at least ten hours.
- Record Retention and Inspection. Employers must retain records required by the FWWO for three years. Employers may be required to provide access to these records to the City’s Office of Wage Standards (OWS) upon request.
- Notice Posting Requirements. Employers will be required to post the notice published each year by the OWS notifying employees of their rights under the FWWO. Notices must be published in a number of languages, including any language spoken by at least five percent of the workforce.
- Penalties. There is a 180-day grace period after April 1, 2023 for violations. Employees are also required to provide written notice of violations to the employer and allow a 15-day cure period prior to filing a complaint with the OWS or a civil action. OWS will investigate complaints and may issue notices of correction (which can be appealed). Restitution and penalties, up to $500 per violation per employee, may be assessed along with administrative penalties and fines. Employees will also be permitted to file private civil actions.
Retail employers in Los Angeles subject to the FWWO should carefully review their scheduling and payment practices and train managers and supervisors regarding FWWO compliance. We strongly recommend you consult with counsel, including the authors of this article, before April 1.