Chapter 4.101

OPPORTUNITY TO WORK ORDINANCE

Sections:

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§ 4.101.030

• 4.101.030 Definitions.

• 4.101.040 Access to hours of work for qualified part-time employees.

• 4.101.050 Notice, posting and retention of records.

• 4.101.060 Retaliation, implementation, enforcement and fees.

• 4.101.070 Relationship to other requirements.

• 4.101.080 Hardship exemption.

• 4.101.090 Small business exemption.

• 4.101.100 Application to welfare-to-work programs.

• 4.101.110 Collective bargaining under federal law.

• 4.101.120 Amendment by the city council.

This chapter shall be known as the "Opportunity to Work Ordinance."

(Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

This chapter is adopted pursuant to the powers vested in the City of San José under the laws and Constitution of the State of California, but not limited to the police powers vested in the city pursuant to Article XI Section 7 of the California Constitution and Section 1205(b) of the California Labor Law.

(Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

The following terms shall have the following meanings:

• A. "Chain" shall mean a set of businesses that share a common brand or are characterized by standardized options of decor, marketing, packaging products or services.

• B. "City" shall have the meaning provided in Section 4.100.030.

• C. "Employee" shall have the meaning provided in Section 4.100.030.

• D. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who:

  1. Directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any employee;

  2. Is either subject to the business tax Chapter 4.76 of the Municipal Code or has a place of business in the city which is exempt under state law from the tax imposed by Chapter 4.76.

• E. "Franchise" shall have the meaning provided in California Business and Professions Code Section 20001.

• F. "Franchisee" shall have the meaning provided in California Business and Professions Code Section 20002.

• G. "Office shall have the meaning provided in Section 4.100.030.

• H. "Retaliation" shall mean any form of intimidation, threat, reprisal, harassment, discrimination or adverse employment action, including discipline, discharge, suspension, transfer or assignment to a lesser position in terms of job classification, job security, or other condition of employment, reduction in pay or hours or denial of additional hours, informing another employer that the person has engaged in activities protected by this article, or reporting or threatening to report the actual or suspected citizenship or immigration status of an employee, former employee or family member of an employee to a federal, state or local agency,

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§ 4.101.030

because the employee or former employee exercises a right under this chapter.

• I. "Shift" shall mean the consecutive hours an employer requires an employee to work or to be on call to work. Breaks totaling two hours or less shall not be considered an interruption of consecutive hours.

• J. "Welfare-to-work program" shall have the meaning provided in Section 4.100.030.

• K. "Work schedule" shall mean all of an employee's regular and on-call shifts, including specific start and end times for each shift, during a consecutive sevenday period.

• (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

• A. Before hiring additional employees or subcontractors, including hiring through the use of temporary services or staffing agencies, an employer must offer additional hours of work to existing employees who, in the employer's good faith and reasonable judgment, have the skills and experience to perform the work, and shall use a transparent and nondiscriminatory process to distribute the hours of work among those existing employees.

• B. The city shall have the authority to issue guidelines to encourage employers to create training opportunities to permit employees to perform work for which the employer can be expected to have a need for additional hours of work.

• C. This section shall not be construed to require any employer to offer an employee work hours if the employer would be required to compensate the employee at time-and-a-half or other premium rate under any law or collective bargaining agreement, nor to prohibit any employer from offering such work hours.

(Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

• A. The office shall publish and employers shall post a notice of employee rights under this chapter pursuant to Section 4.100.060.

• B. The record retention provisions of Section 4.100.600.C. shall apply to this chapter, employers shall retain:

  1. For any new hire of employees or subcontractors, documentation of the offer of additional hours of work to existing employees prior to completing the hire;

  2. Employee work schedules; and

  3. Any other records the office requires that employers maintain to demonstrate compliance.

(Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

The provisions of Sections 4.100.070, 4.100.080, 4.100.090, and 4.100.120 shall apply in their entirety to this chapter with the exception that no fines, fees or civil penalties shall be assessed for an employer's first violation of Section 4.101.040. (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

This chapter requires employers to offer hours of work to existing qualified part-time employees and shall not be construed to preempt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends other protections. (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

• A. The office may grant a hardship exemption for up to twelve months to an employer who demonstrates that:

  1. The employer has undertaken in good faith all reasonable steps to comply; and

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§ 4.101.120

2. Full and immediate compliance would be impracticable, impossible, or futile.

• B. Thereafter, the office may extend the hardship exemption in twelve-month increments if an employer demonstrates that, despite the employer's best effort to come into compliance, hardship conditions continue to exist.

• (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

A small business enterprise that qualifies under Municipal Code Section 4.12.060 shall be exempt from the application of this chapter except that:

The provisions of Section 4.100.050 shall apply in their entirety to this chapter.

(Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

This chapter may be amended by the city council without a vote of the people as regards the implementation or enforcement thereof, in order to achieve the purposes of this chapter, but not in a manner that lessens the substantive requirements of the chapter or its scope of coverage. (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

• A. For a chain business that is not owned by a franchisee, the number of employees for purposes of qualifying as a small business enterprise shall be determined by the combined total number of employees at every location of that chain business, whether or not located in the city.

• B. For a franchisee, the number of employees for purposes of qualifying as a small business enterprise shall be determined by the combined total number of employees at every location owned by that franchisee and operated under the same franchise, whether or not located in the city.

• (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

This chapter shall apply to the welfare-towork programs under which persons must perform work in exchange for receipt of benefits, except that participants in such programs shall have the option to file written statement with his or her employer opting out of the coverage of Section 4.101.040. (Measure E (Ord. 2016.1), adopted by electorate, 11-8-16)

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VOLUME II

2024

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