Small Business Compliance: An Update On Predictive Scheduling Laws

Predictive employee scheduling regulations aim to improve scheduling practices for part-time and shift workers.

Businesses with fluctuating staffing demands often use ‘just-in-time’ employee scheduling. The instability wreaks havoc on the lives of the lowest paid employees in the workforce. These are the people most likely to be living paycheck to paycheck while juggling two or more part-time jobs. Many argue that the practices are unethical and prohibit upward mobility for the least advantaged.

Predictive scheduling laws are known by several different names including fair workweek, secure scheduling, and advance scheduling. Let’s look at the employee scheduling methods in question.

Employee Scheduling Practices Targeted

• Posting schedules with little or no advance notice.
• On-call shifts.
• Changing posted schedules with little or no advance notice.
• Canceling shifts at the last minute.
• Sending employees home before they have worked their full shift.
• Failing to give new hires a good faith estimate of the number of hours they will be able to work.
• Bringing employees in from other locations to fill shifts instead of giving the hours to existing employees.
• Hiring new employees instead of giving more hours to part-time workers who want additional hours.
• Scheduling workers for “clopening” shifts. This is when an employee must close an establishment and then come back to re-open it within a short time frame.
• Providing little or no rest between shifts.
• Failing to reasonably accommodate employees’ requests for flexible schedules.
• Retaliating against employees who make schedule requests, refuse to work shifts added at the last minute or decline to cover for an employee who calls in sick.

How Does Predictive Scheduling Impact Employers?

So far, most of these provisions apply to retail and/or food service employers. Some include the hospitality industry. Many of the measures have minimum employee requirements which further narrows their scope. Nevertheless, employers rarely welcome additional regulation. Let’s examine the advantages and disadvantages for business owners.

Pros

• Providing flexible schedules improves employee retention.
• Posting schedules in advance reduce shift coverage gaps.
• Fair scheduling reduces absenteeism.
• Predictive scheduling improves employee satisfaction which, in turn, improves customer service and job performance.
• Employers who provide fair scheduling have a hiring advantage.
• Fair scheduling supports the physical and mental well-being of employees.
• Predictable scheduling creates a happier work environment for everyone.

Cons

• Scheduling managers have to forecast staffing demands in advance.
• Unexpected changes in staffing requirements may cost the employer in predictability pay.
• Employers who want to limit the number of full-timers on their staff may be forced to push part-timers into full-time status.
• Employee scheduling changes can affect their Affordable Care Act “large employer” status.

Employee Scheduling Software Essential for Compliance

Employee scheduling software helps business owners comply with predictive scheduling regulations. WorkforceHub Scheduling, for example, streamlines employee scheduling for businesses with hourly employees. Managers can create complicated team schedules in minutes regardless of the scheduling logistics: shifts of varying lengths, seasonal staffing fluctuations, and multiple locations.

Demand forecasting tools allow managers to determine staffing requirements in advance. Overtime alerts and meals/breaks settings simplify compliance with Fair Labor Standards Act (FLSA) and other local employment regulations. With scheduling software, employers can comply with workweek regulations while decreasing labor costs.

Legislation Passed That Involves Employee Scheduling

Let’s look at the current state of predictive scheduling legislation. Most of the ordinances adopted have already gone into effect. Some have provisions that will phase in over time. As of this writing, Oregon has the only state-wide predictive scheduling law. It went into effect on July 1, 2018. The following jurisdictions have passed laws with scheduling implications.

San Francisco Formula Retail Employee Rights Ordinance

• Retail and chain restaurant employers required to post employee schedules two weeks in advance.
• Predictability pay required if the schedule changes without seven days’ notice.

Emeryville (California) Fair Workweek Ordinance

• Employers required to post schedules 14 days in advance.
• Extra compensation required for schedule changes taking place in the week prior to the schedule taking effect.

San Jose (California) Opportunity to Work Ordinance

• Employers must offer additional hours to existing part-time workers before hiring new employees. This includes contract and agency workers.
• Employers are required to keep employee schedule and payroll records for four years.

New Hampshire Senate Bill 416

• Requires business owners to consider requests for flexible schedules.
• Restricts employers from retaliating against workers who request a more flexible schedule.

New York Fair Workweek

• Retailers prohibited from using on-call scheduling.
• Retailers must post schedules at least 72 hours in advance.
• Fast food employers must provide 14 days’ notice of schedules and provide additional compensation for schedule changes after posting.
• Fast food employers restricted from scheduling clopening shifts without additional compensation.
• Fast food employers required to provide 11 hours of rest between shifts.
• Fast food employers must give existing workers extra hours before hiring or bringing employees from other locations.
• Fast food employers must post all available shifts.

Seattle (Washington) Secure Scheduling Ordinance

• Retail and food service employers required to post schedules 14 days in advance and provide extra compensation to employees whose schedule is changed during that time.
• Employers must retain schedule records for three years.

Washington D.C. Hours and Scheduling Stability Act of 2015

• Food service employers must post schedules three weeks in advance.
• Employees are allowed to reject any hours or shifts added after schedule posting.
• Employees who agree to work hours added after the schedule posting must provide written consent.
• Employers must offer extra shifts to current employees.
• Employers required to keep scheduling records for three years.
• Employers must give employees one hour of predictability pay for shifts added, canceled, or changed at the last minute.
• Employers must provide fours hours of predictability pay when regular or on-call shifts are canceled within a day of their shift start times.

Oregon Fair Work Week Act

• Affects hourly employees of hospitality, retail, and food services businesses (including chains and integrated enterprises).
• Applies to companies with 500 workers worldwide.
• If the primary duties do not relate to retail, hospitality or food service operations, the employees are not covered.
• It doesn’t affect salaried employees, workers exempt from minimum wage, and contractors supplied from temp agencies. These workers are also not counted toward the 500 employee threshold.
• To determine the number of employees, business owners calculate the average number of workers employed on each workday during 20 or more workweeks during the current calendar year or the previous calendar year.

Ohio Senate Bill 331

Ohio employers are not restricted by this bill. It allows business owners to decide whether to provide advance notice of schedules or flexible schedules to employees. Though it is not mandated, Ohio business owners who practice employee-friendly scheduling will reap the benefits discussed previously.

Areas With Scheduling Legislation in the Works

California
Connecticut
District of Columbia
Illinois
Indiana
Kansas
Maine
Maryland
Massachusetts
Michigan
New Jersey
New York
North Carolina
Ohio
Rhode Island

WorkforceHub scheduling software is designed for businesses with hourly employees, varying part-time shifts, and multiple locations. Visit WorkforceHub advanced employee scheduling for more information on predictive scheduling compliance.

By Liz Strikwerda