Predictive scheduling laws tend to target the kinds of industries that ramp up operations around the holidays – meaning that retail, fast food, hotels, manufacturing, and warehouse locations have yet another thing to worry about during the busiest time of the year. These laws require employers to provide more predictability to employees in their working hours, as well as encouraging employers to turn part-time employees into full-time employees. So how can employers balance the flexibility needed to successfully operate during this season with the restrictions imposed by predictive scheduling laws? In this Insight, we’ll best position you to make staffing and operational decisions that put you in the best position to both comply with the law and operate your business during the holiday season.
Growth of Predictive Scheduling Laws
In the past decade, “predictive scheduling” laws have proliferated in various jurisdictions across the country. We’ve seen these laws pass in extremely employee-friendly, local jurisdictions (like New York, Chicago, Philadelphia, Los Angeles city and county, San Jose, San Francisco, Berkely, and Seattle), with Oregon being the only state to have passed one.
What is Required by Predictive Scheduling Lawa?
Exact requirements will vary by jurisdiction, but predictive scheduling laws generally require the following:
- Provide a regular schedule or good faith estimate setting forth an employee’s long-term expected schedule;
- Post actual weekly work schedules in advance (typically 14 days before the start of a workweek);
- Restrict how much an actual weekly schedule can differ from the predicted schedule;
- Require consent from employees to work late or work hours not on their weekly schedule;
- Additional premium pay when schedules are changed at the last minute (e.g., hours are added, hours are removed, or times or locations change); and
- Require that employers offer open shifts to current employees before hiring new employees, even through a staffing agency.
Additionally, every predictive scheduling law has extensive recordkeeping requirements to ensure that employers can demonstrate what happens from beginning of the scheduling process to the end for each and every employee. This means that employers must document predicted schedules and actual schedules (including documenting the fact that schedules were posted and/or distributed), document any changes to the actual schedules, document any consents to schedule changes required by law, document any employee requests for schedule changes (such as call-outs), and document that shifts were appropriately offered prior to hiring anyone new.
What’s at Stake?
The vast majority of predictive scheduling laws can be enforced by both administrative agencies and private lawsuits. Employers may face some or all of the following types of monetary penalties:
- Fines payable to employees;
- Civil penalties payable to the jurisdiction;
- Backpay for lost wages (e.g., an employee’s hours were reduced in violation of the law);
- Payment of unpaid premiums.
On an individual basis, many of the above penalties may not seem punitive or even very costly. However, nearly every enforcement agency and plaintiffs’ attorney will look to broaden the scope of any investigation or lawsuit. All it takes is for one employee to raise a complaint with an enforcement agency or to contact a lawyer, and your compliance practices could be subject to scrutiny on a systemic or class-wide basis. And any weakness in your compliance practices can result in monetary penalties that stack on themselves, turning relatively small individual penalties into large, class-wide penalties.
What are the Operational Complexities?
Even outside the hotbed of the holidays, predictive scheduling laws can present a morass of compliance challenges. But every compliance challenge is exacerbated by business needs surrounding the holidays. These can include:
- Determining what an employee’s predictive estimated schedule is during the holiday season, when it is likely to change after the holiday season;
- Ensuring that an employee with a long-term predicted schedule consents to a change prompted by immediate operational needs;
- Ensuring that a sufficient number of employees consent to work past the end time of their shift if the holiday rush requires it;
- Ensuring that holiday season call-outs are appropriately addressed, both in planning a weekly schedule based on planned absences;
- Dealing with inevitable day-of call-outs that always increase around the holidays;
- Ensuring that you appropriately offer shifts to your current employees before you increase staffing to meet the holiday rush, even through temporary or staffing agency employees; and
- Considering the extra cost of premium pay when planning schedules and making last-minute scheduling decisions.
And not only must employers comply with these laws, they must be able to prove they are complying these laws. That means you must be meticulous in maintaining records and appropriately documenting schedule changes, consents, and call-outs. For example, if an employee calls out such that their time worked doesn’t reflect their actual schedule, or results in a legally significant difference from their predicted schedule, you would not be able to prove your scheduling practices are compliant unless you maintain a record of the call-out.
And while this may seem simple, many employees will simply call or text or otherwise informally notify their managers of their absence. That means you must impress on your managers and human resources partners the importance of documenting any type of scheduling change.
4 Steps to Best Position Your Operations
1. Get ahead of the curve. Reach out to your managers and human resources partners to remind them of any predictive scheduling requirements in their jurisdictions. Ensure that they review all policies heading into the holiday season, and consider conducting training.
2. Realistically assess operational needs – before and after the holiday season. While the holiday season is unpredictable, being able to put together the best estimate of your staffing needs will put you in the best position to meet them and remain compliant. And understanding when and by how much operations start to ramp down will put you in the best position to remain compliant as operations return to normal.
3. Work with legal counsel to understand the specific requirements of your jurisdiction. While the vast majority of predictive scheduling laws are similar in broad strokes, the specifics can make or break compliance. For example, in New York, employers cannot schedule an employee for less than 85% of the total hours in an employee’s regular schedule by more than 15%. So if an employer gives an employee hired during the holiday season a regular schedule reflecting the holiday rush, the employer may be held to providing those hours even when operations slow. Understanding these specifics will allow you to avoid unnecessary pitfalls.
4. Don’t assume normal compliance efforts are sufficient. Even though your operation may run smoothly on a day-to-day basis and your predictive scheduling compliance is high, you should make sure that you are keeping an eye on staffing decisions during the holiday rush and devoting the resources necessary to ensure compliance. As scheduling gets more complicated during the holiday season, managers and human resources may need additional support to ensure compliance remains strong.
Conclusion
We will continue to monitor developments affecting the workplace and provide updates as warranted. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney, the author of this Insight, or any attorney in our Retail, Hospitality, or other relevant industry teams.
