In December 2022, the City of Berkeley passed the Fair Workweek Employment Standards Ordinance. The ordinance will become operative on January 12, 2024.

The Berkeley ordinance is similar to the City of Los Angeles’s Fair Work Week Ordinance which took effect April 1, 2023,and other local ordinances regarding how employees are scheduled and the flexibility of scheduling provided to employees.

Covered Employers and Covered Employees

The ordinance applies to any employer in the City of Berkeley with 10 or more employees in the city that is:

• primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and employs 56 or more employees globally; or
• primarily engaged in the restaurant industry, and employs 100 or more employees globally; or
• a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises with franchisees employing in the aggregate 100 or more employees globally; or
•  a not-for-profit corporation organized under Section 501 of the United States Internal Revenue Code in the industries specified under subsection (a)(1), (2), and (3) and employs 100 or more employees globally.

The ordinance applies to non-exempt employees who perform at least two hours of work within Berkeley for a covered employer.

Obligations of Covered Employers

The ordinance includes several obligations for covered employers pertaining to scheduling, including the following:

• Provide each employee with a good faith estimate in writing of the employee’s work schedule. The employee may submit a written request to modify the estimated work schedule.  A covered employer, in its sole discretion, may accept or reject the employee’s request.  The covered employer is required to notify the employee of the covered employer’s determination in writing prior to or on the commencement of employment.
• Provide employees with at least two weeks’ notice of their work schedules by doing one of the following:
  • Posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or
  • Transmitting the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace.

• Provide employees with predictability pay for scheduling changes under certain circumstances.

• Provide new employees with an initial work schedule prior to or on their first day of employment. Thereafter, the covered employer shall include the new employee in an existing schedule with other employees.
• Provide an employee written notice of any change to the employee’s posted or transmitted work schedule within 24 hours of a schedule change. This notice requirement shall not apply to any schedule changes the employee initiates.

If you have questions about the Berkeley ordinance or related issues, contact a Jackson Lewis attorney to discuss.