United States: Unfair Scheduling: How New York City's New Predictive Scheduling Law Continues The Trend And Makes Operations More Difficult For Employers

In November 2014, San Francisco passed the first predictive scheduling legislation in the country. Since that time, other states and municipalities have followed San Francisco's lead, and have either proposed or enacted some variation of a predictive scheduling law.

On March 3, 2017, New York became the most recent major city to introduce predictive scheduling legislation. The New York City Council's Committee on Civil Service and Labor introduced, and ultimately passed, a bill (Int. No. 1396-2016) that would implement predictive scheduling for non-salaried fast food employees. New York City's legislation requires employers to post a worker's schedule at least 14 days in advance, and to pay a premium if the schedule is changed with less than 14 days' notice. Importantly, the bill creates a private right of action for employees seeking to enforce their rights. Mayor Bill de Blasio signed the predictive scheduling ordinance into law on May 30, 2017, and it will become effective in 180 days.

As the predictive scheduling trend gains momentum, it is important that employers understand the potential impacts and requirements this legislation will have on their business.

Predictive Scheduling Legislation

Predictive scheduling laws do just what they say: they require a certain amount of notice be provided to an employee of their scheduled shift, and likewise require a certain amount of notice before any scheduling changes are made. These changes in schedule can include shift reductions, on-call adjustments, and many other situations where an employer adjusts an employee's schedule on a particular day.

Predictive scheduling may benefit employees because it gives them consistency and notice of their schedule. Thus, employees are better able to plan for things such as child care knowing their employer is required to provide a certain amount of notice before any change in schedule is implemented. However, predictive scheduling has an adverse impact on the businesses who employ these individuals because it significantly decreases the businesses' flexibility.

Seattle: A Case Study on Predictive Scheduling

Seattle has the nation's preeminent law on predictive scheduling, which takes effect July 1, 2017. It has become the model upon which other states and cities are drafting their predictive scheduling legislation. A brief summary of Seattle's ordinance illustrates the potential problems an employer may face under this type of legislation.

Seattle's ordinance is limited to retail and food service establishments that employ more than 500 employees worldwide. Under the ordinance, employers are required to provide new employees a "written good faith estimate" of the new employee's work schedule. This must include the median number of hours the employee should expect to work, as well as the employer's expectations that an employee will be on-call. Employers are required to revise this good faith estimate once every year.

Employers are also required to provide existing employees with a written work schedule at least 14 calendar days before the first day of the work schedule, and must post the written work schedule in a conspicuous and accessible location. This schedule must include all regular and on-call shifts for the work period. Moreover, the employer must provide timely notice of any change that occurs within the 14 calendar day period required for notice. If the employer makes a schedule change within the 14-day notice period, the employer must compensate the employee with a premium payment depending on the type of schedule change made.

Of course, there are exceptions to the requirement that an employer pay premium payments when a change is made. Such exceptions include situations where employees agree among themselves to trade shifts, additional hours an employee agrees to work in response to a mass communication from the employer, other hours an employee consents to work, changes an employee voluntarily makes to his or her own schedule in writing, and several other reasons.

The law also contains provisions related to hiring new employees. Before hiring new employees, including through a temporary services agency, an employer must offer the available hours to existing employees by posting written notice of the available hours for at least three consecutive calendar days in a conspicuous and accessible location. Only after posting the hours without acceptance by existing employees, may an employer seek help from outside its existing workforce.

Seattle's legislation makes it expressly unlawful for an employer to interfere with, restrain, or deny an employee their rights under this section. Under the statute, there is a rebuttable presumption of retaliation if an employer takes action against an employee within 90 calendar days of an employee exercising his/her rights under the legislation. The ordinance contains provisions allowing an employee to seek unpaid compensation, liquidated damages, civil penalties, fines, and interest. The fines range from $500 for failing to provide a good faith estimate of an employee's work schedule to $5,000 for retaliation. Importantly, the legislation expressly provides for a private right of action to any person or class of persons suffering injury as a result of an employer's violation.

What Predictive Scheduling Laws Mean For Employers

The predictive scheduling movement is gaining momentum. California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, New Jersey, and many other states and municipalities are considering predictive scheduling laws. Thus, employers should pay close attention as these bills pass through the legislatures in their cities and states. And, employers in states where these laws are likely to pass should prepare for the challenges and changes these laws create. For example, employers in retail and food industries may want to phase out on-call scheduling.

In sum, predictive scheduling is just one more hoop employers may be required to jump through to operate a business, in Seattle, San Francisco, New York City and other jurisdictions around the country. These laws will create a host of new and challenging provisions that employers are required to follow, and will certainly result in a multiplicity of lawsuits against employers who fail to follow the rigid requirements of the legislation.

For employers in a jurisdiction where predictive scheduling has already been adopted, legal counsel can help employers draft policies and implement changes to comply with this legislation. Employers in these jurisdictions must review their scheduling practices to ensure they are not subject to legal challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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