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Predictive Scheduling Legislation Continues to Spread

By Lauren Doroghazi | September 29, 2016

UPDATED: The latest information on this issue is available here.

As we reported in the past, laws regulating employee schedules have been spreading at the state and local level ever since San Francisco passed its first-in-the-nation “Retail Workers Bill of Rights” ordinance in November 2014. These ordinances, variously referred to as “predictive scheduling,” “fair scheduling,” “secure scheduling,” “fair workweek,” or “just hours,” generally mandate that employers provide employees with their schedules two to four weeks in advance and require employers to provide employees with “predictability pay” if changes to work schedules are made within this window. This year, 13 states and four localities, including D.C., considered legislation relating to predictive scheduling.

Last week, Seattle became the second city in the country to enact a predictive scheduling ordinance. The new law applies to retail and food service workers at companies that have more than 500 employees worldwide and requires that employees receive their schedules at least 14 days in advance. If any scheduling changes are made within this window, employees receive “predictability pay” equal to half of the hours not worked (if hours are reduced or they are on call) and an extra hour of pay (if hours are added). Predictability pay does not apply when the employees have requested these changes or swap shifts with other employees in order to promote flexibility in the workplace. Employers are also required to provide a good faith estimate of the median number of hours an employee can expect to work when they are hired as well as whether or not they will be expected to be on-call.

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Additionally, the ordinance attempts to end the practice of “clopening,” when an employee works a night shift followed by an early morning shift, by requiring ten hours in between work shifts. If ten hours do not elapse between shifts, employees receive one and a half times their pay for hours worked that are less than ten hours rest. For example, if shifts were eight hours apart, employees would be paid time-and-a-half for their first two hours on the job. Finally, employees have the right to request not to work certain hours that employers must discuss with employees and honor in the case of major life events, which include “employee’s access to the workplace due to changes in the employee’s transportation or housing; the employee’s own serious health condition; the employee’s responsibilities as a caregiver; the employee’s enrollment in a career-related educational or training program; or the employee’s other job or jobs.”

In addition to Seattle, Washington, D.C., New York City, and Emeryville, CA, are considering scheduling ordinances this year. Washington, D.C. debated its Hours and Scheduling Stability Act for several months before tabling the legislation after failing to reach a consensus. Councilmember Elissa Silverman, chair of the council's Subcommittee on Workforce, has committed to resolving differences in the legislation over the next few months and has convened a working group to introduce stronger legislation next year. In mid-September, New York City Mayor Bill de Blasio (D) announced his support for a forthcoming Fair Workweek ordinance that is currently being drafted by labor advocates and councilmembers. Unlike previous ordinances, this legislation would only target fast food workers (the state raised the minimum wage for the fast food sector last year).

Mayor de Blasio's announcement of support for New York's forthcoming Fair Workweek legislation highlighted that scheduling stability is the “natural next step for the fast food workers advocacy movement,” or the Fight for $15. In tracking scheduling ordinances, this pattern has held — San Francisco, Seattle, Washington, D.C., and New York have all passed $15 per hour minimum wage increases, and have all seriously considered or enacted this legislation. However, scheduling ordinances have faced even more pushback than minimum wage increases; both the Washington Post and Seattle Times editorial boards have opposed this legislation, arguing that it will be bad for business as employers face a growing number of mandates and will ultimately result in job loss, negatively impacting the people its supporters are trying to help.

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