‘Opportunity to Work’ law too ambiguous to enforce
Last November San Jose voters passed the “Opportunity to Work” initiative, a well-intended yet misguided scheduling law that was touted as another example of California leading the way in employee protections.
Measure E was hailed as a landmark policy approved by San Jose voters. It took effect in March, requiring local businesses with 36 or more employees to offer existing part-time employees extra work hours before bringing on temporary, part-time or new staff.
After just a few months, it’s clear that the law falls short on its purpose. It has resulted in a confusing, costly and inflexible scheduling system that’s burdensome to employees and employers alike.
The ambiguity of the law is the biggest problem.
It requires that employers give existing employees who qualify for particular work a “meaningful opportunity” to work additional hours before another part-timer is hired. But what does that mean? It’s subjective. Are employers required to verify that all employees have reviewed the offer of more hours, or is a “meaningful opportunity” defined by the amount of time an employer waits before hiring somebody new?
The law also exposes businesses to frivolous lawsuits when one employee is chosen over another for additional hours.
This type of confusion is paralyzing San Jose businesses’ communication with employees out of fear of violating the new law. According to one San Jose retailer, employees are complaining about a negative change in the store culture. Instead of open and free-flowing conversation, managers are sticking to a scripted dialogue about scheduling requests and additional work hours.
The retailer is rarely offering extra hours to employees out of fear of violating the new law, instead attempting to do more with less.
The biggest complaint from San Jose businesses is that the limit on scheduling flexibility affects their capacity to remain nimble when responding to employees and customers. Many employees, including students and senior citizens, join retail for the flexible schedule, but flexibility has all but been eliminated in some stores.
Retailers say they want to give more hours to employees who want them. Happy employees are good for business. But the Opportunity to Work law makes it too complicated to monitor the offers and determine how the law applies to different circumstances.
The operator of a San Jose building maintenance business told us, “Measure E has been nothing but an additional burden to our operation. Many times we need to replace a shift within minutes. This new law has slowed down the pace of our business. It has even deferred our revenues because projects need to be put on hold to remain in compliance with this law.”
San Jose businesses want scheduling consistency for their employees. Many are voluntarily making improvements in scheduling and career growth opportunities, as satisfied and fulfilled employees deliver better customer service. Yet the more rigid an environment we create for job-creators, the more difficult it is for employees and employers to work together on a staffing and scheduling system that’s a win-win.
And ambiguous rules like Measure E can be more rigid in their effect than clear ones.
A one-size-fits-all approach in hiring, scheduling and retaining employees does not work. Every business is unique, which is why the task of scheduling employees requires a delicate balance of responding to customer demand and employee requests.
The “Opportunity to Work” law has led the way, as predicted. It has led to the most confusing, obscure and cumbersome scheduling law in California.
Matthew Mahood is President & CEO of The Silicon Valley Organization. Bill Dombrowski is President & CEO of the California Retailers Association. They wrote this for The Mercury News.