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(1) An employee may decline, without penalty, any work hours that are scheduled or otherwise occur: (a) less than 9 hours after the end of the previous day's shift, or (b) during the 9 hours following the end of a shift that spanned two days. An employee may consent to work such shifts; however, consent must be provided by written communication, either for each such shift or for multiple shifts, and may be revoked by written communication at any time during employment.
(2) A Covered Employer shall compensate the employee for each instance that the employee works a shift described in subsection 9-4604(1), in the amount of forty dollars ($40) for each such shift.
(1) Before hiring new employees from an external applicant pool or subcontractors, including hiring through the use of temporary services or staffing agencies, a Covered Employer shall, subject to the terms and conditions of this Section, offer work shifts to existing employees.
(2) The employer shall provide written notice of available work shifts for at least 72 hours, unless a shorter period is necessary in order for the work to be timely performed.
(a) The notice shall be in English and in the primary language(s) of the employees at the particular workplace, as further defined by regulation, posted in a conspicuous location at the workplace that is readily accessible and visible to all employees. The notice shall also be provided electronically to each employee if the Covered Employer customarily communicates scheduling information in such manner with employees.
(b) The notice shall include a description of the position and its required qualifications, the schedule of available shifts, the length of time the employer anticipates requiring coverage of the additional hours, the process by which employees may notify the employer of their desire to work the offered shifts.
(c) The employer may provide the notice concurrently at the location where the shifts described in the notice will be worked, locations other than the location where the work is to be performed, and to external candidates.
(3) With regard to existing employees, a Covered Employer shall distribute shifts, in accordance with the criteria contained in the notice required by subsection 9-4605(2)(b), to one or more employees who have accepted such shifts and who, to a reasonable employer acting in good faith, are qualified to perform the work, provided that:
(a) A Covered Employer shall distribute shifts to employees whose regular workplace is the location where the shifts described in the notice will be worked; or, if no such employee accepts the shifts within the time defined in this Section, and it is a regular practice of the employer to schedule employees across multiple locations, to employees whose regular workplace is a covered location other than the location where such shifts will be worked. If not a regular practice, offering additional shifts to employees at a different location shall be at the option of the employer.
(b) The Covered Employer's system for distribution of hours shall not discriminate on the basis of race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity, disability, age, marital or familial status, nor on the basis of family caregiving responsibilities or status as a student, and the employer may not distribute hours in a manner intended to avoid application of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18001.
(4) A Covered Employer may hire individuals from an external applicant pool or subcontractors to perform the work described in, and in accordance with the criteria set forth in, the notice posted pursuant to subsection 9-4605(2)(b) if the employer provides notice of available work shifts as required herein, and:
(a) No employee accepts the offer of available work shifts within 24 hours of the end of the 72 hour posting period; or
(b) The employer receives written confirmation from eligible employees that they are not interested in accepting the available work shifts; or
(c) Existing employees have accepted a subset of the offered work shifts, in which case the existing employees must be awarded that subset of work shifts, and external applicants may be offered the remaining shifts.
(5) This Section 9-4605 shall not be construed to require any Covered Employer to offer employees work hours paid at a premium rate under state or federal law, or to prohibit such employer from offering such work hours.
(6) An employer must notify an employee by written communication of its policy for offering and distributing work shifts under this Section, at the time of hire and within 24 hours of any change in the policy, and must post the notice in an accessible location in the workplace. The notice shall state:
(a) Where employees can access written notices of available work shifts;
(b) The process by which employees may notify the employer of their desire to work the available work shifts;
(c) The criteria for distribution of work shifts among qualified and interested employees.
(7) The Agency is authorized to promulgate rules limiting the applicability of this Section with regard to trainees who work for a limited time at a particular location.
(1) It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this Chapter 9-4600.
(2) No person shall take any adverse action as to an employee that penalizes such employee for, or is reasonably likely to deter such employee from, exercising or attempting to exercise any right protected under this Chapter. Taking an adverse action includes threatening, intimidating, disciplining, discharging, demoting, suspending or harassing an employee; assigning an employee to a lesser position in terms of job classification, job security, or other condition of employment; reducing the hours or pay of an employee or denying the employee additional hours; and discriminating against the employee, including actions or threats related to perceived immigration status or work authorization.
(3) Protections of this Section shall apply to any person who mistakenly but in good faith alleges violations of this Chapter.
(4) It shall be considered a rebuttable presumption of retaliation if the employer or any other person takes an adverse action against an employee within 90 calendar days of the employee's exercise of rights protected in this Chapter unless due to disciplinary reasons for just cause, provided the employer documents in writing the incident relating to the employee's discipline. In the case of seasonal employment that ended before the close of the 90 calendar day period, the presumption also applies if the employer fails to rehire a former employee at the next opportunity for work in the same position.
Each Covered Employer shall post and keep posted, in conspicuous and accessible places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the Agency, setting forth the rights and privileges provided under this Chapter, stating that retaliation against employees for exercising such rights is prohibited, and providing such other information as the Agency may require.
(1) Covered Employers shall keep records necessary to demonstrate compliance with this Chapter, including but not limited to good faith estimates of Work Schedules and any modifications thereto, written consent for work shifts as required by this Chapter, offers of work shifts to existing employees and responses to those offers, and payroll records that specify the amount of additional compensation paid to employees under Sections 9-4603 and 9-4604 of this Chapter. Employers shall retain such records for a period of two years, and shall allow the Agency access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. When an issue arises as to a Covered Employer's compliance with this Chapter, if the employer does not maintain or retain adequate records documenting compliance, or does not allow the Agency reasonable access to such records within 30 days of the Agency's request, it shall be presumed that the employer has violated the Chapter, absent clear and convincing evidence otherwise.
(2) Upon request by any employee, and in accordance with the rules of the Agency, a Covered Employer must provide such employee with work schedules for all employees at the location in writing for any previous week for the past two years, including the originally posted and modified versions of work schedules.
All of the provisions of this Chapter, or any part thereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unmistakable terms and only so long as the agreement is in effect contractually. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute, or be permitted, as a waiver of all or any part of the provisions of this Chapter.
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