Predictive Scheduling laws, more commonly known as Fair Workweek laws, have become a hot topic nationwide. In 2017, Oregon took the lead by enacting a statewide Fair Workweek law, paving the way for other state and city jurisdictions to pass or introduce similar legislation, including, but not limited to, Chicago, New York City, Philadelphia, Seattle, and Los Angeles. But what exactly does the Fair Workweek law do for employees all over the United States?
The Fair Workweek laws require that covered employers provide their employees with predictable work schedules. The law aims to give employees who work in industries that more commonly create irregular schedules, like those of retail and food industries, an opportunity to have more consistency and notice regarding their scheduled work week.
However helpful this is to employees, some employers find that this new law presents new challenges. With several employers who already go through difficulty in staffing and shift coverage, providing advanced notice adds more work, calling for them to develop more effective measures in order to stay in compliance with the new legislation. Since the rise of the Fair Workweek, there has been a wave of lawsuits as a result of noncompliance from employers.
Fair Workweek Laws Currently Standing
In order for employers to avoid lawsuits, they simply need to understand whether the law covers them, and if so, where they must comply, and the steps necessary in order to avoid potential exposure and liability. To help you further understand if your state or city has been affected by the Fair Workweek laws, below, we have listed the current status of the jurisdictions with the present and/or upcoming effective dates and their notice requirements.
As it stands, the current state and city list goes as follows:
- Berkeley: January 2024, 2 weeks notice requirement.
- Emeryville: July 1, 2017, 2 weeks notice requirement.
- Los Angeles: April 1, 2023, 2 weeks notice requirement.
- San Francisco: January 4, 2015, 2 weeks notice requirement.
- San Jose: March 13, 2017.
- Chicago: July 1, 2020, 2 weeks notice requirement.
- New York City: November 26, 2017, to be determined*
- Statewide: January 1, 2019, 2 weeks notice requirement.
- April 1, 2020, 2 weeks notice requirement.
- Seattle: July 1, 2017, 2 weeks notice requirement.
Along with the notice requirements, certain jurisdictions have several nuances among the Fair Workweek laws. Those include posting requirements, any additional hours made available to part-time employees before hiring new full-time employees, as well as the requirements concerning cancellation of shifts.
New York vs. Pennsylvania Fair Workweek Laws
In New York City, the Fair Workweek law applies to those working in the fast food, retail, and private utility safety industries. Under the law, individuals who employ those working in retail and utility safety areas must provide a written work schedule at least 72 hours before the first shift on the schedule. Employers are not allowed to schedule employees for on-call shifts and cannot require employees to "check-in" within 72 hours of the scheduled shift to ensure that they should report to the respective shift.
Retail and Private Utility Safety:
Retail and private utility safety employers are unable to cancel or cut shifts by more than 15 minutes less than 72 hours before the start of the shift. If the employer fails to give the employee at least 72 hours' notice of a work schedule, it could lead to fines of $300.00 per affected worker for a first violation. Any violations following can be fined of up to $500.00 per worker. If any employee consents to work additional hours, the employer must receive the employee's consent in writing, stemming from an employee's ability to decline additional work hours.
In the fast-food industry, employers are required to provide their workers with a regular schedule 14 days in advance. Employers are unable to schedule their employees for back-to-back closing and opening shifts with less than 11 hours between the shifts without the employee’s permission and written consent. Like the above for retail and private utility safety employees, fast food employees can decline additional work or reduced work hours. These changes require the employer to receive their consent in writing. Under the law, employees are entitled to decline additional working hours before they are added to the schedule.
If any changes to the schedules are made less than 14 days before the required period, those employers may be subject to pay anywhere between $10 to $75 for each shift affected. Employers must also offer newly available shifts to current employees before hiring new employees for the same shifts. Employers must maintain records of compliance for three years. Failure to maintain records of compliance for a period of three years may lead to a presumption that an employer has violated the law.
The "Fair Workweek Employment Standards" law currently applies to certain employers in Philadelphia's food service, hospitality, and retail industries. In a similar fashion to New York, the law requires employers to provide written notice of the work schedule at least 14 days prior to the first day of any new workweek. However, in addition to the written notice, additional requirements for the schedule include the date and time of the posting stamped on the notice, and it must include at least every employee's first initial and last name, even if they are not scheduled.
The law also requires that when a new employee is hired, those covered under the law must provide a "good faith" estimate of what the employee's work schedule will entail. The Department of Labor for the City of Philadelphia defines a "good faith estimate" as a written average of work hours or shifts an employee can expect to be scheduled to work each week." In accordance with the law, employers must revise the good faith estimate when there is a significant change to their employee's schedules.
If there is a change to the employee's schedule, employers may need to provide "Predictability Pay." The statute defines "Predictability Pay" as "compensation for changes made by the employer to an employee's work schedule, in addition to wages earned for work performed by that employee."
Also similar to NYC, employers in Philadelphia are required to offer new and available work hours to their current employees or provide a policy on offering and distributing new work hours. Employees are entitled to employees can decline additional work that are not listed on the schedule. These changes require the employer to receive their consent in writing. Employers must maintain records of compliance for two years. Failure to keep compliance records for two years may lead to a presumption that an employer has violated the law.
What Does This Mean For Employers and Employees?
For now, those employees who fall under the new law should become familiarized with all applicable Fair Workweek legislation. Even though the new Fair Workweek laws generally speak to the same purpose regarding each working individual, there are several nuances and specific requirements that will affect how it can apply to you now or in the future.
Those individuals who typically handle scheduling and communication with employees on a daily basis, such as managers or those on Human Resources teams, should take action to train their teams on the implications of these laws will have. Employers with employees in multiple states should monitor how this law affects their workers, ensuring they are prepared for the differing requirements in each location.
For more information regarding covered employers and additional requirements, you can connect with us today by completing our free, no-obligation case evaluation form.