This year, Berkeley became the latest California city to enact a “fair workweek” law, which gives workers in certain industries – primarily those who employ hourly workers using floating schedules – the right to receive advance notice of their work schedules and additional compensation if changes are made to their schedule with little notice. 

As described in the ordinance, the law is designed to enact and enforce fair and equitable employment scheduling practices that do not unreasonably prevent workers from attending to their family, health, education, and other obligations, as well as requiring employers needing additional hours to first offer those hours to current part-time employees.

In Berkeley, as well as in San Francisco and Emeryville, covered employers are required to give covered employees their schedules at least 14 days in advance. Specifics vary by ordinance, but generally if workers accept these schedules, their employers are bound to these good-faith estimates unless an exemption in the law allows them to make schedule changes. Otherwise, employees could be entitled to “predictability pay” if their agreed-upon schedules are changed at the last minute.

In San Francisco, the Formula Retail Employee Rights Ordinance applies to Formula Retail Establishments with at least 40 stores worldwide and 20 or more employees in San Francisco, as well as their janitorial and security contractors. If changes are made to an employee’s schedule with less than 7 days’ notice, the employer must pay a premium of 1 to 4 hours of pay at the employee’s regular hourly rate. If an employee is required to be “on-call” but is not called in to work, the employer must pay a premium of 2 to 4 hours of pay at the employee’s regular hourly rate.

In Berkeley and Emeryville, if any changes are made to the length of a covered employee’s shift with less than 14 days notice but more than a 24 hour notice, 1 hour of their regular hourly pay is owed. If hours are reduced or canceled with less than 24 hours notice, the employee is owed 4 hours of pay, or the number of hours in their affected shift, whichever is lesser. If any other changes are made with less than 24 hours notice, 1 hour of pay is owed to the employee. 

Additionally in Berkeley and Emeryville, the ordinances address so-called “clopenings,” giving covered workers the right to rest 11 hours between shifts and refuse shifts that start less than 11 hours after the end of their previous shift. They can accept to work these shifts, but they will receive time-and-a-half pay for work performed during their 11-hour rest window. For example, a worker closes a restaurant at midnight and their next shift starts at 8 a.m. They would receive time-and-a-half pay for the period worked between 8-11 a.m.

The Berkeley law covers employees who perform at least two hours of work per calendar week for covered employers in the city and 

• Qualify as an employee entitled to minimum wage from any employer under the California minimum wage law, including learners; and
• Are not exempt from overtime pay; and 
• Are paid less than a monthly salary equivalent of at least 40 hours per week at a rate of pay of twice the city’s minimum wage: which is $18.07 in Fiscal Year 2024.

Employers covered under Berkeley’s ordinance are those with 10 or more employees in the city that are primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and 

• Employ 56 or more employees globally; or
• Are primarily engaged in the restaurant industry, and employ 100 or more employees globally; or
• Are a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises that employ 100 or more employees globally; or
• Are a not-for-profit corporation primarily engaged in the building services, healthcare, hotel, manufacturing, retail, warehouse services, or restaurant industries and employ 100 or more employees globally. 

If you’re covered by a fair workweek ordinance and think your work schedules aren’t following the law, Keller Grover is here to help. We help workers in employment-related disputes better understand their rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Contact us today for a free, confidential consultation.