As predicted: Fair scheduling trend continues, gaining new ground

When we last discussed the trend of predictive or fair scheduling laws just over a year ago, most of the enacted laws were still limited to the West Coast, with only New York City testing the waters elsewhere. Since, two additional cities — Philadelphia and Chicago — have passed new laws, both of which will take effect in 2020.

As we’ll discuss, the two new laws maintain some common themes prevalent throughout this area of law — for example, a focus on retail and hospitality workers. The new laws also provide numerous exceptions and workarounds, many of which may favor employers that provide self-service scheduling and shift trading.

Philadelphia Freedom: Fair Workweek Employment Standards Ordinance

Effective January 1, 2020, Philadelphia’s Fair Workweek Employment Standards Ordinance will set new scheduling requirements in an effort to provide employees with more predictable work shifts.

But first, let’s talk covered employers. The Philadelphia law zeroes in on those industries for which predictable scheduling can be more challenging — retail, hospitality, and food services employers —while also providing some reprieve to smaller operations with more limited staff and resources. In general, covered employers will be those with at least 250 or more employees and 30 or more locations, but employers should review the specifics closely to determine coverage.

If you’re among these covered employers, you’ll need to provide non-exempt staff who work in the city with additional scheduling information and assurances. New hires must be given a written, good faith estimate of their work schedules, detailing typical times, shifts, and workdays; whether to expect on-call shifts; and average expected weekly work hours. When significant changes occur, perhaps due to employee availability or business need, the employer must revise this written estimate.

When it comes to day-to -day operations, covered employers must facilitate predictable work schedules by giving covered employees sufficient advance notice of their assigned shifts. During the first year of the law’s effect, this means at least 10 days’ written notice before the first scheduled shift. Once Jan. 1, 2021 rolls around, covered employers will need to bump that written notice up to 14 days.

The law provides detailed guidelines on the what, where, and how of this written notice — yes, e-mail, text messages, and alerts from scheduling applications are fine — generally taking a reasonable, common sense approach to getting shift scheduling information into employees’ hands in a reasonable time and way.

Of course, shift changes and scheduling conflicts, particularly in these industries, are inevitable. When such changes are necessary, employers must communicate them as promptly as possible — and no later than 24 hours. Even with prompt and diligent communication, employees will have the right to decline additional hours or shifts not included in the initial posted work schedule.

Employees will also be entitled to “predictability pay” for late-breaking schedule changes. This additional pay could range from an additional hour of pay for schedule changes and additions to half the employee’s hourly rate for hours lost due to cancelled, shortened, or reduced schedules.

Numerous exceptions do apply to the predictability pay requirements, so employers will not be penalized for minor adjustments or emergencies (weather, safety, etc.) that are entirely beyond the employer’s control. The ordinance also includes key exceptions when employees are in control of the shift and schedule changes—for example, voluntary additions or subtractions of hours that are initiated by the employee, mutually agreed-upon shift trades, and other coverage arrangements that occur between employees.

The law includes additional rights (schedule requests), responsibilities (rest periods), and requirements (notices, posting, and recordkeeping) that covered employers should review.

Saturday in the Park: Chicago’s Fair Workweek Ordinance

Now that you’ve absorbed the exhaustive detail of Philadelphia’s ordinance, the good news is that Chicago’s is quite similar.

Effective July 1, 2020, Chicago’s Fair Workweek Ordinance also focuses on specific employers and industries — hotels, restaurants, and retail included — though a few others are added, as well (healthcare, manufacturing, and building services to name a few). Chicago employers will need to more closely scrutinize the coverage requirements, as different thresholds also apply to for-profit vs. not-for-profit organizations.

As in Philadelphia, employers with covered workers in Chicago will need to provide predictive scheduling via written schedule estimates for new hires and advance notice of scheduled shifts for all protected workers. How much advance notice? Again, in the first year of the law’s effect, 10 days will suffice, but from July 1, 2022 forward, 14 days’ notice will be required.

Written notice—including e-mail, text, or other electronic means—of schedule changes must be provided, and the timeliness of this notice will determine whether (and how much) predictability pay is due. As in Philadelphia, covered Chicago employees whose shifts are reduced or cancelled with less than 24 hours’ notice will be entitled to half their regular rates of pay for any scheduled, yet cancelled hours.

Exceptions, of course, apply. Employers will not be penalized for unforeseeable threats, emergencies, and acts of nature. Certain industry-specific emergencies, such as event cancellations and health emergencies, are also considered and excepted. Chicago’s law also excepts schedule changes, such as shift trades and coverage arrangements, that occur between employees. An additional exception is provided for employees who self-schedule entirely.

As with Philadelphia’s law, these details only scratch the surface of the law’s rights, requirements, and responsibilities. Covered employees are also granted the right to decline shifts, the right to request flexible scheduling, and the right to rest between shifts (or to additional premium pay for “clopening” shifts that occur less than 10 hours apart.)

What does this mean for employers?

Early-enacted laws often set the standard and create a legislative template for later legal developments (see, for example, the similarities among state paid sick leave laws).

Then, as more laws come into force, employers and legislators alike discover and reveal more about the practical, day-to-day effects policy changes have on the workplace. As policy shifts mature and more data is available, the newer laws become more nuanced and sophisticated.

While these details and nuances are important, the underlying intent and purpose also offers a clue for savvy compliance. The key problem predictive scheduling laws seek to remedy is the negative effect on employees’ work-life balance and their ability to make needed life choices and decisions. Predictive scheduling laws are intended to realign the balance of scheduling power, placing more autonomy in employees’ hands and more stability in their lives.

Fortunately, improvements in scheduling technology can also place this autonomy in employees’ hands. If employees are able to quickly trade, set, and select shifts and schedules, with minimal employer involvement, then the exceptions in these predictive scheduling laws may provide a reprieve from predictability pay and shift premiums.

Through employee self-service scheduling, employers are able to maintain shift coverage, employees have the hours they need and want, and a better sense of camaraderie and cohesion is achieved among team members. That’s what we call a win-win-win.

Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.

Do you have operations in Chicago or Philadelphia and have questions about these new laws? Is your industry among those with more scheduling volatility? Do you want to hear the latest in predictive and fair scheduling laws, and strategies employers are using to comply with them? Join our compliance team at INSIGHTS 2019 to learn more.