Predictable Scheduling Laws: The Next Trend in Workplace Regulations

Seattle will likely be the next city to limit employers’ use of on-call scheduling

By Lisa Nagele-Piazza, SHRM-SCP, J.D.
Sep 27, 2016 - SHRM

Inconsistent work-scheduling practices—such as "just-in-time" or on-call scheduling—in the retail and restaurant industries have led some cities to pass or consider laws that provide more stability for workers.

On-call scheduling allows employers to staff at levels that correspond to daily customer traffic and fill any gaps caused by workers who call in sick or make other last-minute changes to their schedules.

However, advocates for predictable scheduling laws say that on-call scheduling negatively impacts low-wage earners who may need to plan ahead for their financial, child care and transportation needs, as well as for second-job or school conflicts.

San Francisco enacted a predictable scheduling law in 2015, and a pending law in Seattle is likely to take effect on July 1, 2017.

"The law is designed to provide predictability and income stabilization for employees in certain industries that work for employers of a particular size," said Bryan O'Connor, an attorney with Jackson Lewis in Seattle, about the city's pending law. "But it creates more delays and complexity for retail and food employers that need to quickly resolve scheduling issues."

It's safe to assume, however, that predictable scheduling laws will be proposed in many of the same cities where coalitions have pushed for a $15 minimum wage and mandatory paid sick leave, he noted.

Seattle Law Pending Signature

On Sept. 19, the Seattle City Council unanimously passed the Secure Scheduling Ordinance, which will require certain employers to provide new hires with a good-faith estimate of their work hours and to give employees their work schedules 14 days in advance.

It will also require covered employers to provide additional compensation to workers when their hours are changed with less than two weeks' notice or when they are scheduled to work "clopenings," meaning back-to-back shifts with less than a 10-hour break between shifts.

The ordinance is pending Mayor Ed Murray's signature, but he has expressed his support of the law.

"Secure scheduling helps working families, young people, students and workers of color by providing stability and clarity to their work schedule," Murray said in a press statement.

The ordinance would apply to large retail and food service establishments with 500 or more employees worldwide, explained Catharine Morisset, an attorney with Fisher Phillips in Seattle.

"This includes any employer within a franchise network that employs over 500 people, as well as full-service restaurants with 500 or more employees and more than 40 locations worldwide," she said.

Morisset noted that only employees who physically work at least 50 percent of the time within the city of Seattle are covered.

"While touted as a secure scheduling law, it does much more than prohibit last-minute changes in employee schedules," she added.

Among other things, the ordinance would:

• Allow employees to request their preferred schedule and location.
  
• Require employers to engage in an interactive process with employees to discuss schedule requests, which must be granted in certain situations unless there is a "bona fide business reason" not to grant the request.
  
• Prohibit employers from retaliating against employees who decline a shift that is added to their schedules with less than two weeks of notice.
  
• Require employers to offer shifts to existing staff before hiring additional workers.
  

There will be an exception for employers with an alternative scheduling arrangement pursuant to a collective bargaining agreement that "meets the policy goals of the ordinance."

Seattle employers should get input from managers now about changes that will need to be made to scheduling practices, Morisset suggested. "Starting to educate front-line managers about their affirmative obligations and what will constitute a violation will only help with smooth implementation of any new processes and mitigate against risk of noncompliance."

San Francisco Paved the Way

Although more expansive, Seattle's law was initially designed after San Francisco's ordinance that took effect in 2015.

"The San Francisco ordinance has two main parts," explained Jason Geller, an attorney with Fisher Phillips in San Francisco.

There's the "hours component," which requires employers to first offer available hours to existing part-time employees before hiring new workers, he said. "And the second part imposes penalties on employers for changing schedules on short notice."

Employees in San Francisco must receive one hour of "predictability pay" when their schedules are changed with less than seven days but more than 24 hours of notice.

Workers must receive additional pay if they are provided less than 24 hours of notice regarding a schedule change or are not called in to work during an on-call period.

The ordinance applies to "formula retail businesses" that have 20 or more employees in the city of San Francisco and 20 or more locations worldwide.

Even if the San Francisco location is part of a bigger organization, the law creates another barrier for small employers, Geller said. If an employer only has 20 workers, it was difficult even before this law to manage the schedule when employees called in sick or didn't show up for shifts, he noted.

Is New York City Next?

The predictable scheduling issue has received considerable attention in New York over the past few years.

The state already has a "call-in pay" law that requires employers to pay workers a certain minimum amount of wages if they show up for a scheduled shift and are sent home early.

Furthermore, Attorney General Eric Schneiderman was very active in 2015 in his effort to persuade large retail chains to end their on-call scheduling practices, said William Perkins, an attorney in Seyfarth Shaw's New York City office.

Schneiderman has entered agreements with at least eight retailers.

Moreover, on Sept. 15, New York City Mayor Bill de Blasio announced his commitment to enacting "fair workweek" legislation.

The law would specifically apply to fast-food workers and would impose similar scheduling requirements as the Seattle ordinance.

Perkins said he thinks a predictable scheduling law will pass in New York City.

This is like the paid-sick-leave phenomenon we experienced recently, he noted, and the mayor has lined up a lot of political force to support the scheduling law.

As it stands, the effort is focused solely on fast-food establishments, Perkins said, but it may become more expansive with time.