The City of Los Angeles recently joined Berkeley, San Francisco and Emeryville, Calif.; New York City; Philadelphia; Chicago; Seattle; Euless, Texas; and Oregon as jurisdictions that have enacted fair workweek legislation.
Starting April 1, 2023, Los Angeles retail businesses with at least 300 employees will need to comply with a new Fair Work Week Ordinance (FWWO). The FWWO provides a 180-day implementation period, and the City will not impose penalties or fines on Employers for violations that occur before September 28, 2023. However, during the 180-day period, an Employee or the OWS may bring a potential violation to an Employer’s attention and the Employer will be required to correct any actual violations (including curing the failure to pay Predictability Pay).
However, the City cannot guarantee how a Court might adjudicate a private civil action during the first 180 days after the Ordinance becomes effective.
The City of Los Angeles Fair Work Week Ordinance Frequently Asked Questions (Updated as of 3/15/2023) provides some information about how this new Ordinance works.
A covered Employer must satisfy all of the following criteria: – Identifies as a retail business in the North American Industry Classification System (NAICS) under Retail Trade categories 44-45; – Has at least 300 employees globally; and – Exercises control (directly or indirectly) over the wages, hours or working conditions of any Employee.
A retail business is any business whose principal North American Industry Classification Systems (NAICS) code is within the retail trade categories and subcategories 44 through 45. If the business has more than one unique line of business and identifies with more than one NAICS code, the OWS will consider the NAICS code that corresponds with the business’s principal business activity, which is the activity that the business derives the largest percentage of its total receipts.
Regardless of where an Employer is located, the FWWO applies to a covered retail Employee who performs at least two hours of work in a particular week within the City of Los Angeles.
To determine if a workplace or job site lies within the City limits, you may use Neighborhood Info (http://neighborhoodinfo.lacity.org/). Follow the exact instructions of this website. If an address is located within the boundaries of the City of Los Angeles and is correctly entered, then the search will locate the address on the map with detailed address information.
The FWWO may not apply to a retail employee who is traveling through the City with no employment related stops. Time spent in the geographic boundaries of the City solely for the purpose of traveling through Los Angeles (from a point of origin outside Los Angeles to a destination outside Los Angeles) with no employment- related or commercial stops in Los Angeles except for refueling or the Employee’s personal meals or errands is not covered by the FWWO.
Before hiring an Employee, an Employer shall provide each new Employee a written good faith estimate of the Employee’s Work Schedule. The good faith estimate shall notify a new Employee of their rights under this Ordinance. In the alternative, the Employer may provide the new Employee with a copy of the poster required by Section 185.11.
An Employer shall shall also provide a written good faith estimate of an Employee’s Work Schedule within ten days of an Employee’s request.
.A good faith Work Schedule estimate shall not constitute a binding, contractual offer. However, if an Employee’s actual work hours substantially deviate from the good faith estimate, an Employer must have a documented, legitimate business reason, unknown at the time the good faith Work Schedule estimate was provided to the Employee, to substantiate the deviation.
An Employer shall provide an Employee with written notice of the Employees’ Work Schedule at least 14 calendar days before the start of the work period by posting the Work Schedule in a conspicuous and accessible location where Employee notices are customarily posted and visible to all Employees; or transmit the Work Schedule by electronic means or another manner reasonably caleulated to provide actual notice to each Employee.
Employees are entitled to premium pay in the event there are changes to their schedule. And there is a list of exceptions that prevent the requirement for premium pay.
Before hiring a new Employee or using a contractor, temporary service or staffing agency to perform work, an Employer shall first offer the work to current Employees if one or more of the current Employees is qualified to do the work as reasonably determined by the Employer; and the additional work hours would not result in the payment of a premium rate under California Labor Code Section 510.
An Employee who believes a violation has occurred must inform the Employer in writing of the suspected violation, along with supporting documentation. Employers have 15 calendar days from the receipt of this notification to take action to cure any violations.
Employers should cure the alleged violations and provide applicable restitution to Employees or be able to demonstrate they are in the process of curing the alleged violations at the end of the cure period. An example would be a written commitment by the Employer to cure previously overlooked Predictability Pay in an Employee’s next paycheck, which may be issued outside the 15-day cure period.
This is just a brief summary of some of the essential provisions of the new FWWO. Thus retail employers who are subject to the new Ordinance should carefully read the full Ordinance, the accompanying FAQ, and other resources such as the Society for Human Resources Management (SHRM) or legal counsel.