Over the past five years, the United States has seen a wave of new laws aimed at providing employees with more predictable work schedules.
These predictive scheduling laws are meant to provide stability to individuals so that they can attend to their child care, health, education and, in many cases, second jobs. Early predictive scheduling laws only applied to retail establishments and restaurants, with limited penalties and no private right of action (i.e. employees could not sue for violations of the law).
However, more recent predictive scheduling laws cover a much broader array of industries, with far more draconian penalties, and allow for employee-initiated class action litigation. While these laws are well intended, they do present significant challenges for employers in terms of staffing, costs, document retention and general compliance.
This is because the laws are fairly new and vary by city. Moreover, these laws often require dramatic departures from historical hiring and scheduling practices. The result is a patchwork of new laws, with limited guiding precedent and substantial penalties for noncompliance. Employers would do well to heed these new laws and take appropriate steps to ensure compliance.
Where Are These Laws?
Many jurisdictions have considered, or are considering, passing predictive scheduling laws. So far, two states — Vermont and Oregon — and eight municipalities — San Francisco, Berkeley, Emeryville, San Jose, Seattle, New York, Chicago and Philadelphia — have passed laws. The laws in these jurisdictions are similar but different enough to discourage employers from creating companywide policies and procedures for compliance.
Though most laws require employers to pay their employees predictability pay when their schedules are changed without advanced notice, many laws contain different requirements regarding the amount of predictability pay owed, as well as exceptions to predictability pay entitlement. Accordingly, the differences in predictive scheduling laws not only require different scheduling policies, they require tailored and distinct payroll practices as well. Failure to properly pay employees under predictability pay rules can create federal and state wage and hour exposure as well.
What Do These Laws Require?
While predictive scheduling laws from many of the jurisdictions contain several nuanced differences, there are general requirements that are common to many of them.
- Advanced notice of work schedule.
- A written estimate of each employee’s anticipated work schedule (at the time of hire).
- Predictability pay in the absence of sufficient advanced notice of work schedule.
- Exceptions to eligibility for predictability pay.
- A right to rest requirement (i.e. a sufficient break between two shifts), as well as amplified pay for close-in-time work shifts.
- Offers of additional hours to current, part-time employees before hiring a new employee.
- Posting requirements.
- Stringent documentation and document retention requirements. This generally includes work schedules, written scheduling estimates, documents evidencing predictability pay, and documents related to offers of additional hours.
Though not common, some jurisdictions, such as Seattle and Philadelphia, also encourage employers to engage in the “interactive process” with employees who request a modification to their work schedules. Notably, this idea of an “interactive scheduling process” is a new trend that may expand and present additional managerial burdens for employers.
What Should Employers Be Doing?
- Determine applicability. Employers operating in a jurisdiction with a predictive scheduling law in place should first determine whether they qualify as a “covered employer” under the applicable law. While many laws only apply to certain employers in the restaurant and retail industries, other laws have a more expansive definition of “covered employer.”
- Create policies and forms. Once an employer determines that it is covered, it should develop policies and forms tailored to each applicable law. Sample forms that would be helpful to have on hand include, but are not limited to, a notice of change in work schedule, a notice of offer of additional hours, an estimate of work schedule and hours, and a template work schedule. Additionally, employers should consider maintaining working checklists that managers can use to ensure compliance.
- Train managers. Once the policies and forms are prepared, employers should train their managers on the applicable laws, as they will largely be responsible for facilitating and documenting compliance.
- Ensure proper data maintenance. Because compliance with predictive scheduling laws requires retention of a high volume of documents, employers should ensure they have proper mechanisms in place for storing documents and data.
- Audit for compliance. In order to ensure compliance with any applicable predictive scheduling laws, employers should periodically conduct internal audits to ensure policies are being followed and documents retained.
- Use technology to predict staffing needs. In order to avoid predictability pay, employers may want to utilize technology and data analytics to anticipate future staffing needs. Setting schedules based on reliable data may decrease the need for unanticipated scheduling changes and thus reduce the likelihood of predictability pay.