BILL NUMBER: AB 357 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
AMENDED IN ASSEMBLY MARCH 25, 2015
AMENDED IN ASSEMBLY MARCH 12, 2015
INTRODUCED BY Assembly Members Chiu and Weber
(Principal coauthor: Senator Leyva)
(Coauthors: Assembly Members Bonta, Chu, Gonzalez, Roger
Hernández, Rendon, and Thurmond)
FEBRUARY 17, 2015
An act to add Sections 518 and 519 to the Labor Code, and to amend
Section 11320.31 of the Welfare and Institutions Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 357, as amended, Chiu. Employment: work hours: Fair Scheduling
Act of 2015.
Existing law, with certain exceptions, establishes 8 hours as a
day's work and a 40-hour workweek, and requires payment of prescribed
overtime compensation for additional hours worked. Existing law
establishes the Division of Labor Standards Enforcement in the
Department of Industrial Relations for the enforcement of labor laws,
including wage claims. Existing federal law provides for the
allocation of federal funds through the federal Temporary Assistance
for Needy Families (TANF) block grant program to eligible states,
with California's version of this program known as the California
Work Opportunity and Responsibility to Kids (CalWORKs) program. Under
the CalWORKs program, each county provides cash assistance and other
benefits to qualified low-income families and individuals, and is
prohibited from applying sanctions upon a recipient of CalWORKs for a
failure or refusal to comply with program requirements for reasons
related to employment, an offer of employment, an activity, or other
training for employment for specified reasons, including, but not
limited to, that the employment, offer of employment, or work
activity does not provide workers' compensation insurance. Existing
law establishes a statewide program to enable eligible low-income
persons to receive food stamps under the federal Supplemental
Nutrition Assistance Program (SNAP), known in California as CalFresh,
and requires counties to implement the program.
This bill would make legislative findings and declarations
relating to work hour scheduling for employees of food and general
retail establishments. The bill would require a food and general
retail establishment, as defined, to provide its employees with at
least two 2 weeks' notice of their
schedules. The bill would require a food and general retail
establishment to pay those employees additional pay, as specified,
for each previously scheduled shift that the food and general retail
establishment moves to another date or time or cancels and each
previously unscheduled shift that the food and general retail
establishment requires an employee to work, and would also require a
food and general retail establishment to pay those employees a
specified amount for each on-call shift for which the employee is
required to be available but is not called in to work. The bill would
specify that these provisions do not apply in certain circumstances,
including, but not limited to, when operations cannot begin or
continue due to causes not within the food and general retail
establishment's control. The bill would prohibit a food and general
retail establishment from discharging or discriminating against an
employee because he or she is a person who receives, or is a parent,
guardian, or grandparent who has custody of one or more children who
receive, benefits under the CalWORKs program or a person who receives
benefits under CalFresh. The bill would also require an employer to
allow such an employee to, upon request, be absent
from work without pay for up to 8 hours twice a year to attend any
required appointments at the county human services agency, provided
that the employee gives reasonable advance notice to the
employer of the planned absence from work prior to taking
time off of work. his or her intention to take time
off, unless advance notice is not feasible. The bill would prohibit
an employer from taking any action against an employee
when an unscheduled absence occurs due to a required appointment at
the county human services agency if that employee provides specified
documentation from the county human services agency. The bill
would require the Labor Commissioner to promulgate all regulations
and rules of practice and procedure necessary to carry out these
provisions. The bill would also prohibit sanctions from being applied
upon a recipient of CalWORKs for failure or refusal to comply with
CalWORKs program requirements if the employment or offer of
employment fails to comply with these provisions.
Existing law continuously appropriates moneys from the General
Fund to defray a portion of county costs under the CalWORKs program.
This bill would instead provide that the continuous appropriation
would not be made for purposes of implementing the bill.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the Fair
Scheduling Act of 2015.
SEC. 2. The Legislature finds and declares the following:
(a) More than one-half of food and general retail store employees
nationally receive their work schedules one week or less in advance.
(b) According to a recent survey of employees at chain stores and
large stores, only 40 percent of those surveyed have consistent
minimum hours per week and the vast majority of employees find out
from a supervisor if they are needed for the on-call shift a mere two
hours before the shift starts. Retail industry research in New York
City found that more than one-half of family caregivers in the retail
industry are required to be available for on-call shifts, forcing
them to arrange for child or elder care at the last minute.
(c) Women are also more likely than men to work part time and
experience unpredictability in their work schedules; one study found
that women were 64 percent of the frontline part-time workforce among
retail workers.
(d) Unpredictable scheduling practices and last-minute work
schedule changes cause workers who are already struggling with low
wages to live in a constant state of insecurity about when they will
work or how much they will earn on any given day. These practices
also make it hard for employees to plan their finances and to plan
for and obtain child care. These practices also prevent part-time
employees from pursuing educational opportunities or holding a second
or third job that those workers may need to make ends meet.
(e) According to census data, since 2006, the number of
"involuntary part time employees" in California nearly tripled to
1,100,000 employees. According to the federal Bureau of Labor
Statistics, less than one-half of the retail workforce nationwide
works full time, and the number of those working fewer than 20 hours
per week has grown by 14 percent in the past decade.
(f) According to a survey conducted in 2014 of workers who sell
food in California, the largest producer of food in the United
States, they are twice as likely as the general populace to be unable
to afford sufficient quantities of the food they sell or the healthy
kinds of food their families need, despite the financial health of
the food retail industry. According to this same survey, workers who
were Black or Latino were far more likely to be sent home early with
no pay, to have a shift canceled on the same day it is scheduled, to
not be offered a lunch break, or not be paid for all hours worked.
(g) For these reasons, to ensure family and financial stability
for a vast segment of California's workforce, those employed by food
and general retail establishments should be afforded some
predictability and dignity in how they are scheduled to work.
SEC. 3. Section 518 is added to the Labor Code, to read:
518. (a) (1) For purposes of this section, a "food and general
retail establishment" means a retail sales establishment that has a
physical location with in-person sales, including, but not limited
to, a food retail store, a grocery store, a general merchandise
store, a department store, and a health and personal care store, that
meets all of the following:
(A) Has 500 or more employees in this state.
(B) Has 10 or more other such retail sales establishments located
in the United States of America.
(C) Maintains two or more of the following:
(i) A standardized array of merchandise.
(ii) A standardized facade.
(iii) A standardized decor and color scheme.
(iv) Uniform apparel.
(v) Standardized signage.
(vi) A trademark or a service mark.
(2) A "food and general retail establishment" does not include an
online retailer that does not have a physical location with in-person
sales in this state or a franchise, as defined in Section 31005 of
the Corporations Code, that does not meet subparagraphs (A) to (C),
inclusive, of paragraph (1).
(3) This section does not apply to an employee who is 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 described in Section 515.
(b) A food and general retail establishment shall provide its
employees with at least two weeks' notice of their work schedules.
(c) A food and general retail establishment shall provide an
employee with the following compensation, per shift, for each
previously scheduled shift that the food and general retail
establishment moves to another date or time or cancels, and each
previously unscheduled shift that the food and general retail
establishment requires an employee to work:
(1) One hour of pay at the employee's regular hourly rate if less
than seven days' notice but at least 24 hours' notice is given to the
employee.
(2) Two hours of pay at the employee's regular hourly rate for
each shift of four hours or less if less than 24 hours' notice is
given to the employee.
(3) Four hours of pay at the employee's regular hourly rate for
each shift of more than four hours if less than 24 hours' notice is
given to the employee.
(4) When an employee is required to come into work by a food and
general retail establishment, the compensation required by this
subdivision shall be in addition to the employee's regular pay for
working that shift. This paragraph does not apply to subdivision
(d). (f).
(d) Subdivision (c) shall not apply to shifts for which the
employee is compensated with reporting time pay as required by any
wage order of the Industrial Welfare Commission.
(e) Subdivision (c) shall not apply to changes in the scheduling
of rest periods, recovery periods, or meal periods.
(d)
( f) A food and general retail establishment
shall provide an employee with the following compensation for each
on-call shift for which the employee is required to be available but
is not called in to work:
(1) Two hours of pay at the employee's regular hourly rate for
each on-call shift of four hours or less.
(2) Four hours of pay at the employee's regular hourly rate for
each on-call shift of more than four hours.
(g) Subdivision (f) shall not apply to on-call time that is
required to be compensated as hours worked and for which the employee
is in fact compensated under existing law.
(e)
(h) The requirements in subdivisions (c) and
(d) (f) shall not apply 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 food and general retail establishment'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 this code
existing law when the food and general retail establishment 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, or told to stay at
home as a disciplinary action.
(6) The food and general retail establishment requires the
employee to work overtime, such as mandatory overtime.
(7) The employee trades shifts with another employee or requests
from the food and general retail establishment a change in his or her
shift, hours, or work schedule.
(f)
(i) The Labor Commissioner shall promulgate all
regulations and rules of practice and procedures necessary to carry
out the provisions of this section.
(g)
(j) A violation of this section shall not be a
misdemeanor under Section 553.
(h)
( k) This section shall not be construed to
prohibit a food and general retail establishment from providing
greater advance notice of an employee's work schedule or changes in
an employee's work schedule than what is required by this section.
SEC. 4. Section 519 is added to the Labor Code, to read:
519. (a) (1) A food and general retail
establishment, as defined in Section 518, shall not discharge or
discriminate against an employee because he or she is any of the
following:
(1)
( A) A person who receives CalWORKs cash
aid.
(2)
( B) A parent, guardian, or grandparent who
has custody of one or more children who receive CalWORKs cash aid.
(3)
(C) A person who receives CalFresh food assistance.
(b)
( 2) A food and general retail
establishment, as defined in Section 518, shall allow an employee
described in subdivision (a) to be absent from
work without pay for up to eight hours twice a year, upon request, to
attend any required appointments at the county human services
agency, provided that the employee gives reasonable notice
to the employer of the planned absence prior to taking the time off.
agency.
(b) As a condition of taking time off for a purpose set forth in
subdivision (a), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(c) An employer shall not take any action against an employee when
an unscheduled absence occurs due to a required appointment at the
county human services agency if that employee, within a reasonable
time, provides documentation to the employer from the county human
services agency documenting the required appointment.
(c)
( d) The Labor Commissioner shall promulgate
all regulations and rules of practice and procedures necessary to
carry out the provisions of this section.
(d)
(e) A violation of this section shall not be a
misdemeanor under Section 553.
SEC. 5. Section 11320.31 of the Welfare and Institutions Code is
amended to read:
11320.31. Sanctions shall not be applied for a failure or refusal
to comply with program requirements for reasons related to
employment, an offer of employment, an activity, or other training
for employment employment, including,
but not limited to, the following reasons:
(a) The employment, offer of employment, activity, or other
training for employment discriminates on any basis listed in
subdivision (a) of Section 12940 of the Government Code, as those
bases are defined in Sections 12926 and 12926.1 of the Government
Code, except as otherwise provided in Section 12940 of the Government
Code.
(b) The employment or offer of employment exceeds the daily or
weekly hours of work customary to the occupation.
(c) The employment, offer of employment, activity, or other
training for employment requires travel to and from the place of
employment, activity, or other training and one's home that exceeds a
total of two hours in round-trip time, exclusive of the time
necessary to transport family members to a school or place providing
care, or, when walking is the only available means of transportation,
the round-trip is more than two miles, exclusive of the mileage
necessary to accompany family members to a school or a place
providing care. An individual who fails or refuses to comply with the
program requirements based on this subdivision shall be required to
participate in community service activities pursuant to Section
11322.9.
(d) The employment, offer of employment, activity, or other
training for employment involves conditions that are in violation of
applicable health and safety standards.
(e) The employment, offer of employment, or work activity does not
provide for workers' compensation insurance.
(f) Accepting the employment or work activity would cause an
interruption in an approved education or job training program in
progress that would otherwise lead to employment and sufficient
income to be self-supporting, excluding work experience or community
service employment as described in subdivisions (d) and (j) of
Section 11322.6 and Section 11322.9 or other community work
experience assignments, except that a recipient may be required to
engage in welfare-to-work activities to the extent necessary to meet
the hours of participation required by Section 11322.8.
(g) Accepting the employment, offer of employment, or work
activity would cause the individual to violate the terms of his or
her union membership.
(h) The employment or offer of employment fails to comply with the
Fair Scheduling Act of 2015 (Sections 518 and 519 of the Labor
Code).
SEC. 6. No appropriation pursuant to Section 15200 of the Welfare
and Institutions Code shall be made for purposes of implementing this
act.