United States: Part-Time Workers: New Nuisance For Employers?

A movement to give part-time employees more predictable schedules and related perks recently made front-page news.  See Steven Greenhouse, "A Push to Give Steadier Shifts to Part-Timers," The New York Times (July 15, 2014).  The number of jurisdictions with laws providing for such a right remains small but is likely growing, and the media attention itself may fuel increased part-timer scheduling requests.  Employers should prepare accordingly.

The Current Legal Landscape

In the private sector, the only large jurisdictions that impose legal duties on employers in this area thus far are Vermont and San Francisco.

  • In Vermont, employers' obligations stem from a broader "Equal Pay Act" amendment to the state's employment discrimination statute.  See 21 V.S.A. § 309, available here.  Signed into law May 14, 2014, the amendment provides, among other things, that employers must discuss in "good faith" with an employee, and "consider" any request for, a "flexible working arrangement"—defined to include "intermediate or long-term changes in the employee's regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing."  In addition, an employer must make a determination on whether it can grant such a request, or if doing so would be "inconsistent with its business ... legal or contractual obligations," and then must notify the employee of its decision. 
  • San Francisco's Ordinance is more limited in some respects and broader in others.  See "San Francisco Family Friendly Workplace Ordinance," San Francisco Administrative Code Chapter 12Z (Oct. 8, 2013), available here.  On one hand, the ordinance only covers scheduling requests that are linked to an employee's "care" of:  a child under the age of 18; a family member with "a serious health condition"; or a parent age 65 or older.  On the other hand, the duties of an employer that receives such a request are more onerous than in Vermont:  the employer must meet with the employee within 21 days of the request, respond to the request within 21 days of the meeting, and set forth any denial of a request in writing, providing for a "bona fide business reason" and giving the employee notice of the right to request reconsideration (which the employer may refuse only for "legitimate business reasons").  

Both laws also prohibit employers from retaliating against an employee who makes a scheduling request or engages in other forms of newly protected conduct. 

Additional "Right to Request" Entitlements Expected

State and Local:  Labor unions, women's rights advocates, and other groups are reportedly fueling a national, "Fair Workweek Initiative" pushing for "right to request" legislation similar to those above in cities across the nation—including in New York, Milwaukee and Santa Clara, California.

  • A key driver for unions is that more "right to request" legislation could lead to more "regular" part-time employees, as defined by the National Labor Relations Act (NLRA), and, as a result, an increase in union ranks.  Whereas "regular" part-time employees are typically considered part of a union-represented bargaining unit, "casual" employees are not.

In a related vein, state and local "right to request" laws that are too aggressive, in terms of requiring employers to negotiate with employees over scheduling requests, run the risk of NLRA preemption.  (Although yet untested, the narrow scope and specific clauses of the Vermont and San Francisco laws may save them from such preemption.)

Federal:  In addition to the expected new local legislation fueled by the Fair Workweek Initiative, employers should be aware that U.S. Congressional Representative George Miller (D.-Calif.) has announced plans to introduce federal "right to request" legislation this summer.  His proposal would include a requirement that employers pay an extra hour to an employee who receives less than 24 hours' notice of a required shift, as well as guarantee that workers receive four hours' pay if they are sent home mid-shift because of low customer volume. Although Congress is unlikely to pass Rep. Miller's bill, a more targeted Executive Order is more probable.

Indeed, President Obama recently provided for similar employee scheduling rights in the federal sector.  A June 23, 2014 White House memorandum to all executive department and agency heads directs that, within 120 days, procedures must be in place to provide employees with an ability to request "work schedule flexibilities," including telework, part-time employment, or job sharing.  See "Presidential Memorandum—Enhancing Workplace Flexibilities and Work-Life Program," available here.  In addition, executive branch employers that receive such a request must:  "meet or confer with the requesting employee as appropriate to understand fully the nature and need for the requested flexibility"; "consider the request and supporting information carefully and respond within 20 business days of the initial request"; and ensure that such workplace flexibilities are available "to the maximum extent practicable ... consistent with mission needs."

It would not be a tremendous leap for the President Obama to extend the rights set forth in his memorandum by requiring federal contractors and subcontractors to grant the same type of scheduling rights to their employees.

What All This Means for Employers

Historically, employers have deemed part-time workers as low-risk and high-reward:  they rarely qualify for overtime pay or as employees under the Affordable Care Act, and they generally do not receive benefits.  They also offer employers scheduling flexibility—particularly important in the retail and restaurant sectors where staffing needs can ebb and flow unpredictably based on the season and even daily weather conditions.  But as laws providing more rights to part-timers gain momentum, employers will need to weigh these benefits against new legal duties.

Employers that engage in the types of work-schedule discussions with their employees, as described in the San Francisco and Vermont laws, also should make sure they do not run afoul of NLRA prohibitions on "direct dealing."  Even in jurisdictions without specific laws like those Vermont and San Francisco, employers should review their scheduling procedures to ensure they are applied consistently and do not have a disparate impact on any legally protected group—such as female workers, who statistically make up the greatest share of part-timers.  Employers also should ensure that their scheduling practices take into account the laws in many jurisdictions that protect employees of both genders from discrimination based on familial status and child-care characteristics, which can often form the basis of schedule-related requests.

Stay tuned here for updates on this newest rapidly developing area of law requiring employer monitoring.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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Joel S. Barras
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