Currrent as of February 4, 2022
Senate Bill No. 850
Introduced by Senator Leyva
An act to add Section 510.5 to the Labor Code, relating to private employment.
LEGISLATIVE COUNSEL’S DIGEST
SB 850, as introduced, Leyva. Work hours: scheduling.
Existing law governs the relationship between an employer and an employee with regard to hiring, promotion, discipline, wages and hours, working conditions, and administrative and judicial remedies. Existing law authorizes the Labor Commissioner to investigate employee complaints and to conduct a hearing in any action to recover wages, penalties, and other demands for compensation.
This bill would require an employer, which includes a grocery store establishment, restaurant, or retail store establishment, to provide its employees with a work schedule at least 7 calendar days prior to the first shift on that work schedule, except as specified. The bill would require an employer, except as specified, to pay its employees modification pay for each previously scheduled shift that the employer cancels or moves to another date or time, for any previously unscheduled shift that the employer requires an employee to work, or for each on-call shift for which an employee is required to be available but is not called in to work that shift. The bill would require an employer to post a poster containing specified information regarding an employee’s right to receive modification pay and would require the Labor Commissioner to create the poster and make it available. The bill would define terms for those purposes, including, among others, a grocery store establishment, restaurant, or retail store establishment.
The bill would require the Labor Commissioner to enforce these requirements, including the investigation, mitigation, and relief of violations of these requirements. The bill would authorize the Labor Commissioner to impose specified administrative fines for violations and would authorize the commissioner, the Attorney General, an employee or person aggrieved by a violation of these provisions, or an entity a member of which is aggrieved by a violation of these provisions to recover specified civil penalties against an offender who violated these provisions on behalf of the aggrieved, as well as attorney’s fees, costs, and interest.
The bill would not apply to certain categories of employees who meet specified requirements.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
Section 510.5 is added to the Labor Code, to read:
(a) This section shall be known, and may be cited as, the Fair Scheduling Act of 2020.
(b) The provisions of this section are in addition to and independent of any other rights, remedies, or procedures available under any other law and do not diminish, alter, or negate any other legal rights, remedies, or procedures available to an aggrieved person.
(c) For the purposes of this section, the following terms have the following meanings:
(1) “Employee” means any individual except those 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, as described in Section 515.
(2) “Employer” means a grocery store establishment, a restaurant, or a retail store establishment.
(3) “Grocery store establishment” means a physical store within the state that sells primarily household foodstuffs for offsite consumption, including, but not limited to, the sale of fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, and baked or prepared foods. Other household supplies or products are secondary to the primary purpose of food sales.
(4) “Merchandise” means material goods or consumables.
(5) (A) “Modification pay” means compensation in addition to an employee’s regular pay awarded for changes to an employee’s work schedule with less than seven days’ notice, as required in this section.
(B) Modification pay shall be calculated based on an employee’s hourly wage. If the employee, in the 90 days of employment prior to earning modification pay, had different hourly rates, was paid by commission or piece rate, or was a nonexempt salaried employee, the rate of pay to be used to calculate modification pay shall be calculated 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 employment.
(6) “Restaurant” means any retail establishment serving food or beverages for onsite consumption, including, but not limited to, a restaurant, coffee shop, cafeteria, or café.
(7) “Retail store establishment” means a physical store within the state with more than 50 percent of its revenue generated from merchandise subject to the state’s sales and use tax, including, but not limited to, electronics, appliances, clothing, furniture, sporting goods, health and personal products, or a limited line of food products for onsite consumption.
(8) “Shift” means designated hours of work by an employee, with a designated beginning time and ending time.
(9) “Work schedule” means a written or electronic document that lists all scheduled shifts for all employees for at least 21 consecutive calendar days.
(d) (1) An employer shall provide its employees with a work schedule at least seven calendar days prior to the first shift on that work schedule.
(2) An employer may create separate work schedules for each department.
(3) All hours of work for all employees of an employer shall meet the definition of shift in subdivision (c).
(4) This section shall not be construed to prohibit an employer from providing greater advance notice of an employee’s work schedule or changes in an employee’s work schedule.
(5) This section shall not prohibit an employee from requesting additional or fewer hours of work.
(e) An employer shall provide an employee with 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:
(1) If less than seven days’ notice but more than 24 hours’ notice is given to the employee, the employee shall receive modification pay equal to or greater than one hour at the employee’s regular rate of pay.
(2) If less than 24 hours’ notice is given to the employee, the employee shall receive 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 for less than two hours nor more than four hours.
(3) Modification pay required by this subdivision shall be in addition to an employee’s regular pay for working that shift.
(f) Subdivision (e) shall not apply to changes in the scheduling of rest periods, recovery periods, or meal periods.
(g) For each on-call shift for which an employee is required to be available but is not called in to work that shift, an employee shall receive modification pay equal to or greater than half of that shift’s scheduled hours at the employee’s regular rate of pay.
(h) Subdivisions (e) and (g) shall not apply to shifts for which an employee is compensated with reporting time pay as required by any wage order of the Industrial Welfare Commission.
(i) The requirements in subdivisions (e) and (g) shall not apply, and an employer shall not be deemed to have violated subdivision (e) or (g), 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 employer’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 or bona fide collective bargaining agreement when the employer 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 as a disciplinary action, or told to stay at home as a disciplinary action.
(6) Two employees have mutually agreed to trade shifts.
(7) The employer requires the employee to work overtime, such as mandatory overtime.
(j) (1) In each workplace of the employer, the employer shall display a poster in a conspicuous place containing all the information in paragraph (2). The Labor Commissioner shall create a poster containing the information in paragraph (2) and shall make it available to all employers.
(2) The poster shall state all of the following:
(A) An employee of an employer is entitled to modification pay.
(B) The amount of modification pay provided for by this section.
(C) An employee has the right under this section to file a complaint with the Labor Commissioner against an employer that retaliates or discriminates against the employee.
(3) An employer that willfully violates paragraph (1) shall be subject to a civil penalty of not more than one hundred dollars ($100) for each offense.
(k) An employer shall keep for at least three years records documenting the hours worked and modification pay awarded and shall allow the Labor Commissioner to access these records pursuant to the requirements in Section 1174. An employer shall make these records available to an employee in the same manner as described in Section 226.
(l) (1) An employer shall not discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for filing a complaint with the appropriate enforcement agency or alleging a violation of this section, cooperating in an investigation or prosecution of an alleged violation of this section, or opposing any policy, practice, or act that is prohibited by this section.
(2) 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 any of the following:
(A) The filing of a complaint by the employee with the Labor Commissioner or alleging a violation of this section.
(B) The cooperation of an employee with an investigation or prosecution of an alleged violation of this section.
(C) Opposition by the employee to a policy, practice, or act that is prohibited by this section.
(m) The Labor Commissioner shall enforce this section, 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.
(n) (1) If the Labor Commissioner, after a hearing that contains adequate safeguards to ensure that the parties are afforded due process, determines that a violation of this section has occurred, the commissioner may order any appropriate relief, including, but not limited to, reinstatement, backpay, the payment of modification pay unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty, to an employee or other person whose rights under this section were violated.
(2) If modification pay was unlawfully withheld, the dollar amount of modification pay withheld from the employee 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.
(3) If a violation of this section results in other harm to the employee or person, such as discharge from employment, or otherwise results in a violation of the rights of the employee or person, 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) Where prompt compliance by an employer is not forthcoming, the Labor Commissioner may take any appropriate enforcement action to secure compliance, including the filing of a civil action. In compensation to the state for the costs of investigating and remedying the violation, the commissioner may order the violating employer to pay to the state a sum of not more than fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each employee or other person whose rights under this section were violated.
(p) An employee or other person may report to the Labor Commissioner a suspected violation of this section. The commissioner shall encourage reporting pursuant to this subdivision by keeping confidential, to the maximum extent permitted by applicable law, the name and other identifying information of the employee or person reporting the violation. However, the commissioner may disclose that employee’s or person’s name and identifying information as necessary to enforce this section or for other appropriate purposes, upon the authorization of that employee or person.
(q) The Labor Commissioner, the Attorney General, an employee or person aggrieved by a violation of this section, or an entity a member of which is aggrieved by a violation of this section may bring a civil action in a court of competent jurisdiction against the employer or other person violating this section and, upon prevailing, shall be entitled to collect legal or equitable relief on behalf of the aggrieved as may be appropriate to remedy the violation, including, but not limited to, reinstatement, backpay, the payment of modification pay unlawfully withheld, the payment of an additional sum, not to exceed an aggregate penalty of four thousand dollars ($4,000), as liquidated damages in the amount of fifty dollars ($50) to each employee or person whose rights under this section were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld modification pay to an employee, the dollar amount of modification pay withheld from the employee multiplied by three or two hundred fifty dollars ($250), whichever amount is greater, and reinstatement in employment or injunctive relief, and further shall be awarded reasonable attorney’s fees and costs, provided, however, that any person or entity enforcing this section on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs.
(r) In an administrative or civil action brought under this section, 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.
(s) The remedies, penalties, and procedures provided under this section are cumulative.
(t) The Labor Commissioner may promulgate all regulations and rules of practice and procedures necessary to carry out the provisions of this section.
(u) A violation of this section shall not be a misdemeanor under Section 553.
Fair Scheduling Act California 2019