Employment Law in San Jose: Employee Rights Guide

Overview

San Jose, California's third-largest city, has enacted several employment ordinances that protect workers beyond state law. The City focuses on wage protections, hiring practices, and leave benefits. This guide covers the major San Jose employment laws.

San Jose Minimum Wage

Current Rate and Employer Coverage

San Jose has established a city minimum wage, adjusted annually based on the cost of living. Check the current rate and which employers it covers with the City of San Jose, since both the rate and the coverage rules are set by ordinance and change.

Covered Employees

All employees who work in San Jose are entitled to the San Jose minimum wage, regardless of whether they are full-time, part-time, or temporary employees. Independent contractors are generally not covered.

Wage Requirement

The minimum wage must be paid as straight time wages. Tips and other benefits cannot be credited against the minimum wage requirement.

San Jose Opportunity to Work Ordinance

What It Actually Requires

The Opportunity to Work Ordinance came from Measure E and took effect March 13, 2017. It is a scheduling and hours measure and has nothing to do with criminal history, despite the two often being run together.

It applies to employers with 36 or more employees and requires them to offer additional work hours to existing qualified part-time employees before hiring anyone new — including new part-time staff, temporary staff, staffing-agency workers, and contractors. Hours must be distributed through a transparent and nondiscriminatory process.

A "part-time employee" for this purpose is anyone who performs at least two hours of work for the employer and is entitled to the California minimum wage. That is a low bar, so occasional and marginal part-time staff are inside the ordinance rather than outside it.

The Office of Equality Assurance may grant a hardship exemption for up to 12 months where an employer shows it has taken reasonable steps but full and immediate compliance would be impracticable, impossible, or futile. If you are told the ordinance does not apply, that exemption is the thing to ask about.

Criminal History in Hiring: the Protection Is State Law

San Jose has no general ban-the-box ordinance reaching private employers. The protection is the California Fair Chance Act, Government Code § 12952, which applies to employers with five or more employees. Under it an employer may not ask about conviction history before making a conditional offer, and before withdrawing an offer over conviction history it must:

• Make an individualized assessment of the nature and gravity of the offense, the time that has passed since it and completion of sentence, and the nature of the job;
• Give written notice identifying the specific disqualifying conviction, with a copy of the conviction history report; and
• Allow at least five business days to respond, with five more if you are disputing the accuracy of the report.

Separately, arrests that did not lead to conviction, participation in diversion, and convictions that have been sealed, dismissed, expunged, or statutorily eradicated may not be considered at all. There is no seven-year cutoff in § 12952; the seven-year limit belongs to Civil Code § 1786.18, which restricts what a background check company may report rather than what an employer may act on.

Paid Sick Leave: State Law, Not a San Jose Ordinance

San Jose does not have a general local paid sick leave ordinance. Its only citywide labor postings are the Minimum Wage Ordinance and the Opportunity to Work Ordinance. The city adopted an emergency COVID-19 paid sick leave ordinance in April 2020, which was a pandemic measure of limited scope and duration, not a standing entitlement.

So paid sick leave for a San Jose worker runs on California law, Labor Code §§ 245 through 249. The points that decide most questions:

• Accrual of one hour for every 30 hours worked, or an employer may front-load 40 hours or five days.
• Availability floors under § 246: at least 24 hours or three days by the 120th calendar day of employment, and 40 hours or five days by the 200th.
• Use permitted from the 90th day of employment.
• Caps: an employer may limit use to 40 hours or five days a year under § 246(d), and need not allow total accrual above 80 hours or 10 days under § 246(j).
• Enforcement is through the Labor Commissioner under § 248.5. There is no private right of action for the sick leave provisions themselves.

Our California paid sick leave guide sets this out in full, including the retaliation presumption and the penalty structure.

Paid Leave and Compensation

Supplemental Paid Leave

Some San Jose employers provide supplemental paid leave beyond earned sick time and state mandated benefits. Employers may establish their own policies on vacation, personal days, and other paid time off.

Minimum Wage and Overtime

All San Jose employees are entitled to overtime compensation under California law when they work more than 8 hours per day or 40 hours per week, in addition to the San Jose minimum wage.

San Jose Enforcement and Remedies

Office of Equality Assurance

San Jose's city labor ordinances are administered and enforced by the Office of Equality Assurance, within Public Works. It implements the City's wage policies, takes complaints, investigates, and may impose penalties. There is no "Department of Employer Programs and Policies"; if you are trying to reach the city about a minimum wage or Opportunity to Work issue, the Office of Equality Assurance is the office.

Remedies and Penalties

Violations of San Jose employment ordinances can result in penalties, back pay, damages, and attorney's fees. Employees have the right to file complaints with the city or pursue claims in court.

Statute of Limitations

Filing deadlines differ by ordinance. Confirm the deadline for your specific claim with the city or with an attorney; missing it can end a claim entirely.

California State Law Protections

Additional Protections

In addition to San Jose ordinances, employees in San Jose are protected by California state employment laws covering wage and hour matters, discrimination, harassment, and other employment issues. Many of these state protections are more generous than the minimum required by San Jose law.

Conclusion

San Jose employment law protects workers through minimum wage requirements, earned sick time, and hiring practice restrictions. Employees should be aware of both San Jose city ordinances and California state employment laws. If you believe your rights have been violated, consult with an employment attorney or contact the appropriate enforcement agency.