Retail Detail: Philadelphia Fair Workweek Law Delayed and Regulations Forthcoming

Seyfarth Synopsis: Weeks before the Fair Workweek Law was set to become effective, the Philadelphia Mayor’s Office of Labor announced that the law’s effective date would be postponed until April 1, 2020.  Additionally, the Mayor’s office confirmed that final regulations will be released before the end of the year.

While everyone may have been enjoying their Thanksgiving turkey, it seems that the Philadelphia Mayor’s Office of Labor was carving away at the impending Fair Workweek Law (the “FWW Law”).  Previously set to become effective on January 1, 2020, the Mayor’s Office postponed the FWW Law’s start date until April 1, 2020. 

The announcement also detailed that employers can expect the FWW Law’s final regulations to be released before the end of 2019.  Currently, the Mayor’s office is reviewing the numerous comments to the proposed regulations submitted during the open comment period. 

For a comprehensive analysis of the FWW Law’s requirements, please reference our prior Legal Update.  Below is a quick summary of the FWW Law’s key aspects.   

Advance Notice of Work Schedules

Good Faith Estimate for New-Hires

Employers will be required to provide newly-hired employees a written good-faith estimate of their work schedule and to revise such estimates based on changes in the employee’s availability and/or the employer’s business needs.  The regulations will likely clarify the exact parameters of the good faith estimate.  According to the law, the estimate must describe:

(a) the average number of hours the employee can expect to work each week over a typical 90-day period;

(b) whether the employee can be expected to work any on-call shifts; and

(c) a “subset” of days, times and/or shifts the employee can typically expect to work, or on which the employee will not be scheduled to work.

The law also allows employees to request schedule changes or preferences and encourages employers to engage in an interactive process before granting or denying such requests. 

Written Work Schedules and Posting Requirements for Existing Employees

The law will also require employers to provide employees with advance notice of their work schedules.  Effective April 1, 2020, employers will be required to post work schedules at least 10 days before the first day of the new schedule.  Starting January 1, 2021, (unless this date is postponed as well), employers will be required to post work schedules at least 14 days before the first day of the new schedule. 

Changes to Work Schedules and Predictability Pay Requirements

Employers will be required to notify employees “as promptly as possible” of any changes to their work schedule.  Employees, in turn, can choose whether to accept any hours or shifts not included in the originally-posted schedule. 

Predictability Pay

As has become characteristic of other predictable scheduling laws, the Philadelphia FWW Law requires “predictability pay” in certain circumstances when an employer changes employees’ schedules after the required advanced notice period.  Employees will be entitled to the following pay:

• One hour of predictability pay when an employer adds time to an employee’s work shift, or changes the date, time, or location of the shift, without any loss of hours.
• One-half times the employee’s regular rate of pay for all hours an employee does not work because the employer subtracts hours from a shift, or cancels a shift.

Significantly, not all schedule changes require predictability pay.  The situations in which predictability pay is not required are listed in the FWW Law, and the forthcoming regulations are expected to highlight these situations further.

Right to Rest Between Shifts

Employees may also decline, without penalty: (a) shifts starting less than nine hours after the end of a prior day’s shift; or (b) shifts within nine hours of the end of a shift that spanned two days.  Employees who agree to work such shifts must be paid an additional $40 for each such shift.

Existing Employees’ Priority Rights to Additional Shifts

Qualified existing employees must be offered additional shifts before hiring any external candidates.  The FWW Law details the manner in which shifts must be offered.  Employers are not required to offer additional shifts to existing employees if the additional hours would require paying overtime.

Policy Requirements

Employers must post a written policy describing their process for offering and distributing work shifts. 

Employer Takeaways

Although the effective date of the Philadelphia FWW Law has been postponed, covered employers should not wait too long to initiate their plans for compliance.  Believe it or not, April will be upon us before we know it!  The Regulations, once released, will serve as an informative guide to help employers implement policies and processes designed to comply with the legal requirements.    

If you have any questions regarding compliance with Philadelphia’s Fair Workweek Ordinance, or any other predictable scheduling laws, please contact Vlada Feldman at vfeldman@seyfarth.com, Sara Eber Fowler at sfowler@seyfarth.com, Joshua D. Seidman at jseidman@seyfarth.com, Howie M. Wexler at hwexler@seyfarth.com, or your Seyfarth Specialist.