In a trend that is gaining steam across the country, multiple cities and states have, or are considering adopting, laws that impose conditions and penalties on employer scheduling practices, otherwise known as “scheduling laws.” Although these laws mostly apply to retail and/or fast food employers, the specific language of the law or ordinance should be consulted to determine whether a broader category of employers may be implicated.
Most prevalent in California, scheduling laws are currently in effect in the cities of San Francisco, San Jose, and Emeryville. Seattle, Washington recently followed suit and scheduling laws will soon become effective in New York City (November 26, 2017) and the State of Oregon (July 1, 2018) – the first state to pass a scheduling law. On the horizon, scheduling laws have also been proposed in Chicago, and debated in Connecticut, North Carolina, and Ohio.
Scheduling laws impose various requirements on employers, including: (1) advance notice (usually 2 weeks) for employee schedules; (2) “penalty pay” associated with schedule changes; (3) a requirement to offer work to existing employees before hiring new employees; (4) an “interactive process” requirements relating to scheduling; (5) no retaliation against employees for exercising their rights; and (6) robust notice and recordkeeping requirements. Proponents of scheduling laws believe that requiring predictable work shifts will provide employees with several benefits, including predictable wages and time off, scheduling child care, and scheduling for other part-time jobs employees may hold. Nevertheless, a study of the San Francisco legislation suggests that there have been negative consequences from the legislation such as employers offering fewer jobs with less flexibility (many part-time workers choose to do be part-time because of the flexibility), scheduling fewer employees per shift, and pursuing self-service automated alternatives to hiring employees. The study also estimated that only one in seven part-time workers in San Francisco are working a part-time schedule involuntarily.
As a recap, San Francisco’s scheduling law, the first of its kind, went into effect on October 3, 2015 and the key provisions of the law are further described here. Now following in San Francisco’s wake, San Jose’s Opportunity to Work ordinance became effective March 13, 2017. This ordinance applies to all San Jose businesses with 36 or more employees. Key provisions of the ordinance require:
- employers must offer qualified part-time non-exempt employees additional hours before hiring any new or temporary employees, and
- the employee’s/applicants’ hours must be offered in writing.
However, unlike San Francisco, the ordinance does not require an employer to offer work if it would result in overtime or premium pay. The ordinance can be enforced administratively (fines and civil penalties) or by private right of action (lost wages, penalties, and attorney’s fees). There is also a “rebuttable presumption” of retaliation if an employee claims they suffered adverse employment action within 90 days of complaining about a violation of the ordinance.
The Emeryville Fair Workweek Ordinance tentatively went into effect on July 1, 2017; however, the city has since announced a “soft launch” date of January 1, 2018 and will use the initial six month period to focus on employer education by accepting and investigating complaints without imposing penalties and fines. The ordinance applies to non-exempt employees of fast food establishments and retail stores with 56 or more employees globally, and specific provisions require the employer to:
- provide a good faith estimate of an employee’s work schedule prior to commencement of employment; thereafter, employers must provide two weeks’ advance notice of an employee’s work schedule;
- compensation for employer-initiated schedule changes (with some exceptions) or in the event that an employee’s shift is changed providing for less hours; and
- offer work to existing employees before hiring additional employees, up to giving existing employees 35 hours of work in a week.
Seattle’s Secure Scheduling ordinance went into effect on July 1, 2017 and applies to hourly non-exempt employees of retail and fast food businesses with more than 500 employees worldwide. A private right of action for alleged violation of Seattle’s ordinance could result in “treble damages” and penalties/fines.
As previously reported, the New York City “Fair Workweek” legislative package consists of five bills, three of which apply to fast food employers, one that applies to retail employers, and one that sets forth general provisions. This “package” is to become effective on November 26, 2017.
Finally, Oregon’s Fair Work Week Act applies to non-exempt employees and becomes effective July 1, 2018 (with requirements of length of scheduling notice phased in over the next two years). The Act applies to Oregon employers with 500 or more employees worldwide in services relating to “retail trade,” “hotels,” “motels,” or “food services.” Beginning January 1, 2019, employees will have a fee-bearing private cause of action to enforce their rights under the law, and the Bureau of Labor and Industries will have the power to seek penalties of up to $1,000 per violation.
In light of these developments and because many of these provisions have yet to be interpreted, employers with operations in these locations should familiarize themselves with the mandated scheduling practices moving forward In addition, employers should be careful to locate the most current implementing rules (as they periodically change) which, are crucial to complying with these somewhat complicated laws and ordinances. Employers may also consider consulting the city’s (or state) government website, which may include information in the form of fact sheets, contact lists, webinars, and other resources.