On the heels of new legislation relating to the workforce, including changes to paid time off policies and sick leave policies (in states like Arizona, Georgia, Illinois, and Minnesota), local governments across the country are beginning to pass ordinances regarding predictive scheduling. Employers in certain areas and industries will be required to provide their employees with advance notice of their schedules and be subject to fines if they change employee schedules within the allotted timeframes.
State and City Laws Mandate Predictive Employee Scheduling
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Updated January 2018
Statewide Scheduling Laws
Oregon Fair Work Week Act
For Oregonians familiar with the shift-based, hourly work that’s a hallmark of the food service, retail, and hospitality industries, predictable schedules were once the dream. Finding a balance between work, family, and personal interests can be a real struggle for people who work these demanding jobs — especially if they work a second job to fill in the gaps.
Oregon’s Fair Work Week Act scheduling law will require the schedules of nonexempt, hourly employees in food service, hospitality, and retail to be more predictable. Oregon’s law will require employers to give their teams at least seven days’ written notice of scheduled shifts and make sure employees receive at least 10 hours to rest between shifts.
Answering a few simple questions will help business owners in Oregon determine how the Fair Work Week will affect them.
Oregon employers in retail, hospitality, and food service with at least 500 employees worldwide will need to provide employees advance notice of their schedules.
On July 1, 2018, most provisions of the law will take effect. In July 2020, employers will be required by law to provide 14 days’ written notice of employee schedules.
Employers implicated in Oregon’s new law will need to provide employees with a clear idea of what their schedules will be, or the average hours the employee should expect to work, and whether employees can opt to work more hours. Employers will also need to keep a poster outlining the law visible at the workplace at all times.
Employers will need to keep detailed records of compliance for at least three years. Employee scheduling and time tracking will be more important than ever for businesses affected by the Fair Work Week.
Citywide Predictive Scheduling Laws
San Francisco Formula Retail Employee Rights Ordinance
San Francisco was the first city to pass an ordinance mandating the rule. The Formula Retail Employee Rights Ordinance took effect in July 2015 and mandates that retail and chain restaurants provide two weeks’ notice of work schedules and provide “predictability pay” if schedules change with less than seven days’ notice.
Emeryville Fair Workweek Ordinance
Across the bay from San Francisco, Emeryville became the third city in the nation to implement scheduling laws. The Fair Workweek Ordinance requires retail shops and restaurants with 56 employees or more to give two weeks’ notice and increased wages for schedules that change less than seven days in advance.
San Jose Opportunity to Work Ordinance
The San Jose Opportunity to Work Ordinance was approved by voters in November 2016 and went into effect in March 2017. The Ordinance requires businesses with a minimum of 36 employees (both part- and full-time) to offer extra hours or shifts to their existing part-time employees before hiring additional workers. “Additional workers” include contract workers and workers from temporary staffing agencies.
Under the Ordinance, these employers must also post official notice of the requirement. They are also obligated to keep, for up to four years, records of current and former employees’ schedules and payroll, plus any written offers for more work given to part-time employees.
Chicago Fair Workweek Ordinance
Chicago’s Fair Workweek Ordinance was proposed in the summer of 2017. If passed, the Ordinance would require all businesses in the city to post employees’ schedules with at least two weeks’ notice and pay them extra for last-minute changes. It would also give employees the “right to rest,” requiring employers to offer adequate time between shifts. The Ordinance would go into effect on July 1, 2018.
New York City “Fair Workweek” Package
New York City’s Int. No. 1387-2016, Int. No. 1388-2016, Int. No. 1395-2016, and Int. No. 1396-2016 — each a piece of the larger “Fair Workweek” package — will take effect on November 26, 2017. Outlined in Int. No. 1387, retailers must stop “on-call scheduling” practices and provide employee schedules with at least 72 hours’ notice, among other requirements.
Int. No. 1388 prohibits fast food employers from scheduling “clopening” shifts (an opening and closing shift on the same day) without providing extra compensation. Fast food employers must also allow employees at least 11 hours of rest between shifts.
Meanwhile, Int. No. 1395 says fast food employers must offer additional hours to existing employees before scheduling employees from other locations or hiring additional help. They must also post, on paper and electronically, all available shifts.
Finally, Int. No. 1396 requires predictive schedules for fast food employees. Each employee must be given 14 days’ notice of all shifts and be paid a premium if a schedule is canceled, shortened, moved, or added to within those 14 days.
Seattle Secure Scheduling Ordinance
Seattle’s Secure Scheduling Ordinance was the second citywide scheduling law. Implemented in July 2017, retail and food service companies in Seattle, with 400 employees worldwide, must now post work schedules two weeks in advance and pay employees when the schedule changes. This Ordinance also mandates employers keep their scheduling records for three years.
Designed with the food service industry and chain franchises in mind, the Hours and Scheduling Stability Act of 2015 requires employers in the District of Columbia to provide their employees with 21 days’ advance notice of their work schedules. Employees may decline to work any hours or shifts added to posted schedules and must provide written consent if they choose to work added shifts. In addition, employers are required to offer extra shifts to existing employees and keep detailed scheduling records for three years.
The Act also requires employers provide one hour of predictability pay, or the employee’s hourly rate, for added, canceled, or changed shifts at the last minute. Employers are also subject to pay four hours of predictability pay to employees whose regular or on-call shifts are canceled within 24 hours of their start times.
Measures Related to Fair Workweek and Predictive Scheduling
Although many cities and states have introduced legislation related to predictive scheduling and the fair workweek, these measures have only become law in a handful of places. In some states, “predictive scheduling” isn’t called out specifically, but preemptive measures have been taken to ensure employers aren’t restricted from scheduling or providing certain benefits on their terms.
A preemptive amendment was added to Title 34, the Georgia Minimum Wage Law (O.C.G.A. 34-4-3.1), in 2017. The amendment preempts employee benefit mandates outside of an employee’s wage or salary, including “health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid days off for holidays, sick leave, vacation, and personal necessity; additional pay based on schedule changes; retirement benefits; and profit-sharing benefits.” Similarly, no government entity can adopt, maintain, or enforce wage and employment mandates. Government entities are only legally required to provide wages and benefits outlined in the Georgia Code or federal law.
New Hampshire’s Senate Bill 416, an Act relative to flexible working arrangements in employment, doesn’t have a predictive scheduling law by name. But the bill, passed in the 2016 session, does require employers to consider employee requests for more flexible schedules. It also prohibits employers from taking disciplinary action against employees who ask for a more flexible work schedule. Flexible working arrangements, however, don’t include “routine scheduling of shifts.” An employer should be able to justify any denied request if the request is inconsistent with business operations or would have a detrimental effect on the business, among other reasons.
Ohio’s Senate Bill 331, passed in March 2017, criminalizes animal abuse and requires the Department of Agriculture to license pet stores. But it also prohibits government entities from raising the minimum wage while permitting private employers to decide how many hours an employee can be on-call, employee schedules, and the amount of notice an employee may receive for an upcoming schedule, among other things.
These are considered matters between employers and employees. “Whether an employer will provide advance notice of an employee’s initial work or shift schedule, notice of new schedules, or notice of changed schedules, including whether an employer will provide employees with predictive schedules” is up to them.
SB331 has since been challenged. In June 2017, several sections of the bill were ruled in violation of the Ohio Constitution’s “one-subject” rule by Judge Richard A. Frye. The animal welfare provisions currently stand, while other sections have been ruled unconstitutional but have yet to be repealed.