Two years later, is ‘Opportunity to Work’ law in San Jose working?

Two years after the adoption of a landmark law to boost hours of low-wage workers, San Jose City Hall has little information about how it’s working and whether it’s being effectively enforced.

There also appears to be confusion among employees about the law and the protections it provides, San José Spotlight has learned.

Measure E, also referred to as Opportunity to Work, passed in 2016 and requires employers with 36 or more employees to offer existing employees the option of working additional hours before hiring new employees. The law is enforced based on complaints.

But the city, which has one person assigned to implement the law for nearly 97,000 businesses citywide, has received just 10 complaints of noncompliance in two years. The law went into effect in March 2017.

According to Christopher Hickey, a division manager at the city’s Office of Equality Assurance — the department that oversees the program — only 10 complaints have been filed since the ordinance was adopted, and eight out of the 10 reported cases were a “misunderstanding” because of a lack of outreach and education about the program.

Hickey would not disclose the names of the businesses that had complaints filed against them, but he said they involved restaurants, a nursing home and a school program at a church. In one instance, a restaurant line cook kept seeing his employer hire new people when he had asked to work more hours. However, the employer was not hiring more line cooks, but was instead hiring employees to fulfill different positions.

“As a line cook, you have a different set of skills than as a server or ‘front of house’ person,” added Hickey. That employee “did not understand the true scope of the policy.”

The ordinance allows the city to issue administrative fines and penalties for noncompliance. No fines have been issued.

Despite the low number of complaints, Hickey said a “lot of work” is being done to inform workers about their rights and how to recognize potential violations. “We receive phone calls, explain to workers their rights and discuss the process on the policy,” he said.

San Jose officials do not proactively visit businesses to educate employers about the law. Instead, the city provides informational posters in multiple languages that employers must display in a visible place for workers to see.

Labor leaders defend the law

The ordinance was crafted by labor activists who said that part-time employees were being cheated out of hours needed to make ends meet. The measure, a first of its kind in the country, was overwhelmingly supported by San Jose voters and passed with a nearly 65 percent margin.

“When we helped develop this policy we really wanted to get at the issue that folks working multiple jobs and juggling multiple employers were not getting enough hours to really be able to support their family,” said Jeffrey Buchanan, director of public policy at local thinktank Working Partnerships USA.

According to Buchanan, San Jose is experiencing an underemployment crisis, meaning that employers hire more part-time employees in an effort to cut costs. Employers can avoid providing critical benefits such as health insurance and retirement plans by hiring more part-time employees instead of offering those hours to existing ones.

Opportunity to Work was designed to help employees by ensuring that employers stop engaging in “abusive” practices and instead support workers, proponents said.

“Like minimum wage, or another labor policy, this empowers workers to be able to educate their bosses,” added Buchanan. “They’re able to say: This is what I need to be able to work to earn enough money to provide for myself and my family.”

But who is educating the employees on their rights? With only 10 complaints filed in two years — eight of which were thrown out — it’s clear there’s still confusion about the law, regardless of its intent.

“If we had more staff and more resources we’d want to put that information out there,” said Hickey. “I think it’s important for the city—especially for employees and employers—to know this information.”

Buchanan agreed that “there needs to be more resources for government informing workers on their rights,” but from what he’s heard, the law is still helping employees.

Businesses continue opposition

But not everyone is convinced that the ordinance is living up to what it promised.

“The biggest issue around Opportunity to Work is its ambiguity,” said Kevin McClelland, who serves on the Board of Directors for the Cupertino Chamber of Commerce. “It was well spirited in wanting to create full accountability for employers, but I never understood where this came from. I never heard anyone say that this was an issue.”

McClelland said small businesses have many obstacles that negatively affect them and that “ambiguous” legislation such as Opportunity to Work only contributes to that.

“How many do you think understand it?” added McClelland. “You know that if you go past the speed limit that’s posted, you break the law. There are some things that are real clear — but this isn’t it.”

Buchanan disagreed, saying more labor legislation helps both the business and the employee.

“This is designed to secure more work for existing workers, not to rack up violations or give headaches to employers,” he said. “Just because we haven’t seen a lot of violations doesn’t mean that the policy isn’t working. This is working — this was not intended to punish businesses by any means. With robust job growth and low unemployment, it would be hard to argue that this is somehow hurting businesses.”

Contact Nadia Lopez at nadia@sanjosespotlight.com or follow @n_llopez on Twitter.

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