Fair Game? Predictable Scheduling Laws -- The Sensation Sweeping The Nation

Seyfarth Synopsis:  Last minute scheduling change?  Want to make sure you have enough employees on stand-by to cover shifts?  In a growing number of areas around the country, that will cost you. 

Fair scheduling laws – sometimes referred to as “predictive” or “predictable” scheduling – are popping up in city councils and state legislatures across the nation.  Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of “predictability pay” – such as one hour of pay for every four hours of scheduled work – if changes are made to an employee’s schedule on short notice.  These laws also tend to require predictability pay if employees are “on call” but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (“clopenings”).

San Francisco was the first to pass a law of this kind, which went into effect in July 2015.  But in the past year, more states and cities have passed – or are considering – similar legislation.  In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).  Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City’s recently passed ordinance will be enforceable as of November 26, 2017. 

Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C.  (Georgia, on the other hand, has taken the opposite approach, and passed a law that prohibits municipalities from passing a law that would require predictability pay.)

The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees’ ability to plan for caregiving needs, hold second jobs or attend school, and plan their income.  Several national retailers have already been forgoing “on-call” scheduling practices, irrespective of any legal mandate.

Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions.  Bear in mind that each law varies.  In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are “on-call” but not called to work.  New York City’s law, on the other hand, only requires schedules to be posted with 72 hours’ notice, but bans on-call scheduling altogether. 

Many of the proposed and enacted laws also create an “interactive process” obligation – similar to the Americans with Disabilities Act – whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason.  They also generally prohibit retaliation against employees who request changes to their schedules.   

Each statute also contains its own unique exceptions.  Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.  Oregon’s law calls for the creation of a “voluntary standby list” of employees who may be called upon to work unexpected hours without receiving additional compensation.    

Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes.  For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary “standby” lists may be helpful to comply with these varying laws with minimal interruption to business operations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.