San Jose is the third northern California city to enact a scheduling ordinance that further regulates employers’ scheduling and hiring practices.  Following on San Francisco and Emeryville’s lead, San Jose recently passed “The Opportunity to Work Ordinance” (Ordinance No. 2016.1, codified at Chapter 4.101 of the San Jose Municipal Code), which went into effect on February 6, 2017.

The primary aim of the Ordinance is to create more full-time jobs in place of multiple part-time jobs for affected employees by requiring employers to first offer additional hours to existing, part-time employees who, in the employer’s good faith and reasonable judgment, have the relevant skills and experience.  Such hours should be distributed by way of “a transparent and nondiscriminatory process.”  It is only after the employer cannot distribute more hours to qualified and willing part-time employees that it may resort to hiring additional employees or subcontractors, including those hired through staffing or temporary agencies.  However, employers are not required to abide by these procedures if the hours in question would have to be paid at a premium rate (i.e., overtime for more than 8 hours in a day/40 in a week).

San Jose employers also must post a notice informing employees of their rights under the Ordinance and retain various records. Retaliation against employees exercising their rights under the Ordinance is strictly prohibited.

The Ordinance applies to all employers who employ more than 35 employees and who are subject to San Jose’s business tax.  When counting the number of employees, employees should include all persons, including corporate officers and executives, who are directly or indirectly employed, or over whom the employer exercises controls (e.g., with regard to wages, hours, or working conditions).  The employee count also includes all of the business’s employees—even if they are not employed in San Jose—thus subjecting franchises and chain retail stores and restaurants to the new rules.

There are two exceptions in the Ordinance’s application:

  1. Employers that can demonstrate hardship (i.e., that they have, in good faith, taken all reasonable steps to comply but find that complete and immediate compliance is impracticable, impossible, or futile) may be exempt.
  2. Unionized employees may waive the Ordinance provisions and entitlements through collective bargaining.

Employers in San Jose should take immediate attention.  Although fines, fees, and civil penalties (of $50 per employee for each day of violation) will not be assessed for an employer’s first violation, there is no such “first-pass” for the Ordinance’s provision of attorneys’ fees and costs to prevailing aggrieved parties.

This trend regarding local regulation of part-time employee hours is certainly not unique to California, as Seattle passed its own version of a “secure scheduling” ordinance last year and numerous other cities—including Washington D.C., New York, Minneapolis, and Albuquerque—have considered doing the same.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.