On April 1, 2023, the City of Los Angeles’ Retail Fair Workweek Ordinance took effect, but the City had only issued a Frequently Asked Questions page as guidance. More recently, the City published rules and regulations as required in the ordinance.
The Rules and Regulations cover the following topics:
- Determining who is a covered employee
- Determining who is a covered employer
- Good faith estimates
- Advance notice of work schedules and changes to work schedules
- Predictability pay and exemptions to predictability pay
- Rest between shifts requirement
- Offering additional work hours to employees
- Notice and posting requirements
- Record retention requirements
- Notices to cure
Most of the rules and regulations restate what is in the ordinance but also include illustrative examples for determining if an employer is a retail business and calculating the total number of employees globally for purposes of coverage under the ordinance.
Two items of note in the regulations are the definition of when a schedule has substantially deviated from the good faith estimate of hours and how offers of additional hours should be provided.
When Estimated Hours Substantially Deviate
The regulations set forth when a good faith estimate of hours is deemed to “substantially deviate” for the purposes of the statute. Under the regulations a good faith estimate substantially deviates when any of the following occurs:
- Six work weeks out of twelve consecutive work weeks in which the number of actual hours worked differs by 20% or more from the expected hours in the Good Faith Estimate, and the differences are not due to documented employee-initiated or employee-approved changes
- Six work weeks out of twelve consecutive work weeks in which the actual days of work differ from what was indicated in the Good Faith Estimate at least once per week, and the differences are not due to documented employee-initiated or employee-approved changes
- Six work weeks out of twelve consecutive work weeks in which the actual location of the Shift differs from what was indicated in the Good Faith Estimate at least once per week, and the differences are not due to documented employee-initiated changes or employee-approved changes; or
- Six work weeks out of twelve consecutive work weeks in which at least one actual Shift per week is outside of the potential Shifts indicated in the Good Faith Estimate; and the differences are not due to documented employee-initiated or employee-approved changes.
If actual work hours substantially deviate from the hours’ estimate, employers must have a legitimate, documented business reason that was unknown at the time of the estimate to substantiate the deviation. If the employee requests a revised good faith estimate, the employer must provide a current estimate within ten calendar days of the employee’s request.
Offer of Additional Hours
The regulations also set forth a process for offering additional hours to employees in lieu of hiring additional employees. The regulations state that the notice communicating the offer should contain the following:
- Shifts or days and times the employee must be available to work;
- Length of time the employer anticipates requiring coverage of the additional hours;
- Description of the position;
- Required qualifications for the position and that training, if any, will be provided;
- The process by which the employee may accept the hours; and
- Date and time by which the employee must accept or decline the offer
All employers covered by the ordinance are required to post a notice of the ordinance. The City has published the notice on its website for employers in several languages. Covered employers are also required to provide this notice to all new employees at the time of hiring.
If you have questions about the Los Angeles Retail Fair Workweek Ordinance or related issues, contact a Jackson Lewis attorney to discuss.