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Note: This feature is actively rolling out across our product. If you do not yet have access to it and are interested in our Fair Work Week offering, please fill in this form. |
- Background knowledge
- Who is covered by the Berkeley Fair Work Week Law?
- What are Fair Work Week Requirements and how can Deputy help?
Background knowledge
This article assumes you have read these general articles on Fair Work Week:
You can also find more information about Berkeley Fair Work Week here:
Note: If team members clock in and out using the Deputy Kiosk for iPad or Deputy Time Clock for Android, make sure these apps have been updated to the latest versions. Fair Workweek will only be supported on iOS Kiosk version 5.3.7 and Android Time Clock version 0.11.0 and beyond.
Who is covered by Berkeley Fair Work Week?
The ordinance applies to any employer in the City of Berkeley with 10 or more employees in the City of Berkeley that is:
- is primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and employs 56 or more employees globally; or
- is primarily engaged in the restaurant industry, and employs 100 or more employees globally; or
- is a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises that employ 100 or more employees globally; or
- a not-for-profit corporation primarily engaged in the building services, healthcare, hotel,
manufacturing, retail, warehouse services, or restaurant industries and employs 100 or more
employees globally.
These laws then apply to any employee of such businesses who works at least two hours per calendar week within the boundaries of the City of Berkeley and:
- qualify as an employee entitled to minimum wage; and
- are not exempt from payment of overtime; and
- are not paid a monthly salary equivalent to 40 hours per week at twice the local minimum wage.
What are Fair Work Week Requirements and how can Deputy help?
Initial Estimate of Minimum Hours
The initial estimate of minimum hours is a good faith estimate of the employee's schedule. It must be provided to the employee on or before their first day of work. The good faith estimate must include the days, times and locations that an employee can expect to work each week and the total number of hours per week they should expect to work.
How can Deputy help?
Deputy allows you to provide the initial estimate of minimum hours to your team members through our 'regular working hours' feature. Read more at:
Advanced notice for scheduling
The Berkeley Fair Workweek Ordinance requires covered employers to provide employees with work schedules in advance. For Berkeley businesses, this has to be 14 days in advance of the first day of a work period lasting for at least 7 days.
How can Deputy help?
Deputy allows managers to schedule shifts well into the future - and when published, employees will always have access to their shifts, allowing them to plan ahead. Read more at:
Schedule change consent
Subject to limited exceptions, employers cannot add time to an employee’s schedule without their consent within 14 days from the start of the work period. Consent must be 100% voluntary.
This includes situations such as:
- adding time to a shift or
- changing the day, time or location of a shift or
- requests to stay late to cover rush or
- request to cover for another employee who called out sick.
Consent must be documented in writing, or electronically and must reference the specific shift they are consenting to change.
How can Deputy help?
- When scheduling in Deputy with consent enabled, scheduling managers will be warned if they have created or changed a shift that will require consent from the team member and may trigger a pay premium.
- Note: To minimize occurrences of scheduling or changing shifts that trigger consent or incur pay premiums, scheduling managers are reminded that to comply with legislation, managers need to publish new or changed shifts 14 days before the beginning of the work period in which the shift occurs (not just 14 days before the start of the shift itself).
- In the event of last-minute unscheduled changes to shifts, consent is also captured through the use of shift questions at clock in and out. Shift questions are used to capture consent ahead of time for changed shifts, when an employee clocks in early or late, or to attest to missed meal and rest breaks. These get recorded in the timesheet for audit purposes. If you have assigned the Berkeley Fair Work Week pay rate to your team member, we automatically provide attestation questions for the following scenarios:
- Unscheduled Shift
- Early In
- Early Out
- Late In
- Late Out
Predictability pay for schedule changes
Fair Work Week laws require employees to be paid premium payments in addition to their normal wages for certain changes to the published work schedule. This is aimed at rewarding employees who are flexible, and as a disincentive to businesses for making last-minute changes.
For Berkeley, predictability pay is paid according to the following rules:
- When the employer makes a schedule change with less than 14 day's notice (From the first day on the schedule) but 24 hours' or more notice, the employee is entitled to one hour of predictability pay. This includes subtracting hours or canceling shifts, adding hours or shifts, or moving shifts to another date or time.
- When the employer subtracts hours or cancels shifts with less than 24 hours' notice, the employee is entitled to four (4) hours or the number of cancelled or reduced hours in the employee's scheduled shift, whichever is less.
- When the employer adds hours or shifts, or moves shifts to another date or time with less than 24 hours' notice, the employee is entitled to one hour of predictability pay.
- Predictability pay is paid at the employee's regular rate of pay.
How can Deputy help?
Deputy pay rates can take the stress out of manually calculating premium payments by automatically calculating premiums based on changes made to the schedule, allowing direct export straight to your payroll provider.
This library rate is available in both premium and enterprise accounts in the pay rates section of your team member's profile.
For more information on exactly how this calculates premiums, see Berkeley Fair Work Week pay rate.
Right to rest (Clopening)
"Clopening" shifts are shifts where an employee works late one night and then works early the next morning.
Berkely’s covered employees are required to have at least 11 hours of rest between shifts across two work days. Businesses cannot schedule clopenings unless the employee consents to work the shifts and are paid a clopening pay premium, which is 1.5 times their base rate for any hours worked less than 11 hours following the end of a previous shift.
How can Deputy help?
Deputy will alert the manager when they have scheduled a team member on a clopening shift by providing a warning that this shift may incur a clopening pay premium. If the manager still proceeds to schedule the shift, then the team member will be asked to consent to work this shift. Read more at:
Missed Meal breaks
Employers of California employees must provide a 30-minute meal period for every 5 hours worked or major fraction thereof. If they fail to do so the employer must pay the employee one extra hour of pay at the employee’s regular hourly rate.
If the shift duration is greater than 5 but less than or equal to 6 hours, employees may waive the meal period. If waived, employees are not entitled to the missed meal break premium pay.
How can Deputy help?
Deputy provides two pay rates for Berkeley, one with the meal break waiver included, one without. It is the employer's responsibility to update the pay rates for each employee, depending on whether that employee has signed a meal break waiver form.
For employees without the meal break waiver, Deputy will ask an attestation question after they have worked more than five hours in a shift, asking if they have received all of their meal breaks. If they answer that they did not receive their breaks, and did not clock in for the required number of breaks, a meal break premium will be attached to their timesheet automatically. If they answer that they did receive their breaks, no premium will be attached.
For employees with the meal break waiver, Deputy will ask an attestation question after they have worked more than six hours in a shift, asking if they have received all of their meal breaks. If they answer that they did not receive their breaks, and did not clock in for the required number of breaks, a meal break premium will be attached to their timesheet automatically. If they answer that they did receive their breaks, no premium will be attached.
For more information see Break Attestations.
Offer of Work to Existing Employees
Fair Work Week laws also state that available shifts must be offered to existing part-time employees before hiring new ones, including temps. This allows part-time employees to become full-time if they wish. To be eligible, part-time employees must:
- have worked for the employer for more than 2 weeks; and
- be qualified to do the additional work; and
- have a work schedule that does not conflict with the additional hours.
Employers have discretion on how to distribute the additional working hours among employees so long as they do not discriminate and do not avoid giving an employee 30 hours in order to avoid the obligation to provide medical benefits.
How can Deputy help?
Deputy allows managers to make open shifts that still require manager approval. We recommend using this feature to offer the shift to all participants, at which point the manager can decide on who fills it based on their own criteria (seniority, tenure, cost, etc).
We recommend posting these criteria and processes in the News Feed of Deputy so that all employees can see this, with a confirmation message so they can confirm they know the process.
Recordkeeping
Fair Work Week requires key information to be stored for several years that show compliance with the Fair Work Week laws. This includes copies of good faith estimates, rosters, timesheets, consents to schedule changes, records of all schedule changes, records of predictability pay, clopenings and clopening pay, and proof that open shifts were offered to current employees.
How can Deputy help?
Deputy will electronically store most records saved in the system, and in the event of an audit can provide employers with a copy of their records on request. Employers may also create numerous reports within Deputy to provide to auditors.