Fair Scheduling Laws: The Newest Employment Law Trend in the USA

The first secure scheduling ordinance was passed in 2014 when San Francisco passed its worker’s Bill of Rights. Then in 2017, several cities and one state passed more secure scheduling laws.

• San Francisco passed its Workers Bill of Rights, effective October 15, 2015
  • Employers with 20 employees in San Francisco & 20+ locations worldwide
  • Advanced schedule posting
  • Extra hours offered existing employees
  • Requires penalty pay for additional, reduced, or changed hours
  • Prohibits discrimination against part time employees
• San Jose’s Opportunity to Work, effective March 13, 2017
  • 36+ employees
  • New/additional hours must be offered to existing employees with 36 hours to respond
• Emeryville’s Fair Work Week, effective July 1, 2017
  • City council announced a “soft launch” of Jan 1, 2018
  • Non exempt employees or fast food and retail chains
  • Good faith estimate of work prior to hiring
  • Compensation for schedule changes
  • New hours offered to existing employees
• Seattle’s Secure Scheduling, effective July 1, 2017
  • Non-exempt employees of fast food and retail employers with 500+ employees worldwide
  • Private right of action can result in “treble damages” and penalties
• New York City’s Fair Work Week, effective November 26, 2017
  • Five total ordinances
  • Retail and fast food employees
• Oregon’s Fair Work Week, effective July 1, 2018 with phasing
  • Large employers 500+ employees
  • Retail trade, Hotels, Motels, & Food services
• Washington D.C. Building Service Employees Act requires that building service workers be given at least 30 hours a week. Employers can reserve up to 20% of the total work  for part time employees. Part time employees must be given at least 20 hours of work scheduled in 4 hours minimum blocks.
• New Hampshire‘s Relative to Flexible Working Arrangements in Employment isn’t a full scheduling law, but is typically included in scheduling laws. The law protects employees who ask for flexibility in their working schedules from retribution or work stigma.

Local Governments Propose Scheduling Laws

Since San Francisco’s Bill of Rights, many other cities  have also considered or are considering similar laws. Many of these ordinances have not passed. The following cities have attempted some form of restrictive scheduling ordinance.

• Minneapolis, MN. Proposed a secure scheduling ordinance in 2015. It failed when the ordinance’s biggest supporter, the mayor, pulled support for the ordinance. The proposed ordinance required 4 weeks notice for schedules. Employees would have received 1 hour of premium pay for every change made to the schedule and 4 hours of premium pay for every change made with less than 24 hours notice. The proposed ordinance would have covered all businesses within the city.                     
• California State tried in 2015 to pass its “Fair Scheduling and Pay Act” The act would have applied to fast food and retail establishments. It also provided premium pay for schedule changes. After it failed to pass, in 2017, California legislatures introduced the “Right to Work Act” which requires that employers first offer additional hours or shifts to existing employees before hiring temporary or additional employees. The proposed act is more strict that San Jose’s as it applied to all businesses with 10+ employees instead of the 35 that San Jose targets. In addition the state act does not provide any exceptions for employers while San Jose does.
• Connecticut Act Concerning Predictable Scheduling failed to pass in 2015. It would have required at least 21 days notice before schedules were effective and required between 1 and 4 hours of premium pay for any changes made, depending on the amount of notice given.
• Illinois also proposed a secure scheduling law, which failed to pass in 2015. It required employers to interact with employees in a “good faith interactive process” and allowed employees to request changes to their schedules, hours and schedule changes. Employers would have to state in writing the reasons for their decisions and consider alternatives to employee requests.
• Chicago is currently reviewing a fair workweek ordinance that will require advanced notice of schedules, premium pay for changes, additional hours to be offered to existing employees, and other part time employee rights.
• Maryland proposed a fair scheduling act in 2015 which failed to pass. The act would have required 21 days notice for all schedules and matched much of what San Francisco’s Bill of Rights provided employees.
• Massachusetts House of Representatives sponsored two bills in 2015. Although they didn’t pass, Mass. was one of 7 states that have questioned retail stores about scheduling practices. The pressure from these states have caused several retailers including Disney, Aeropostale, Starbucks and other retailers and food service employers to commit to advanced scheduling practices. Another bill requiring 7 days pay and providing penalty pay for schedule changes has been reintroduced again for the 2017-2018 session.
• Michigan introduced legislation in 2014 that would have allowed employees to request schedule changes to accommodate health conditions, act as a caregiver, or attend career related education programs. It also would have required premium pay for cancelled or split shifts.
• New Jersey legislature looked at two bills that would have allowed employees to set change their work schedules and take off an additional 40 hours a year for school events. Employers who didn’t comply could have been sued by employees per both laws.  A slightly more employer friendly scheduling bill was reintroduced in 2016. Employees would have been able to request schedule changes due to serious health conditions (likely already covered under FMLA), responsibilities as a health care giver, educational commitments, and obligations to a secondary employer. The New Jersey Schedules that Work have been introduced to the legislature every year since 2015.
• New York State is currently reviewing regulations that would create scheduling requirements for all minimum wage employers. The state has looked at scheduling laws sine 2015 and recently passed a family leave law. It is also possible that the state rules would preempt the recent New York City Scheduling Ordinances.
• Rhode Island lawmakers have spoken about creating laws that would mandate employees schedules and create predictable pay for employees. However, no such bills have been introduced for the 2017-2018 session yet.
• Washington DC passed a scheduling law that affected specifically building maintenance employees. The Building Service Employees Minimum Work Week Act was passed in 2016 and requires minimum weekly hours of 30 hours and 20 hours for part time employees.
• If at First You Don’t Succeed. . .

Advocates of secure scheduling bills and other employee rights laws will continue to push advanced scheduling laws on a local and a state level.

Even states with preemption laws that restrict local cities and towns from passing scheduling laws may see such a law on the state level.

For example, Arizona passes a preemptive sick leave law, which was quickly followed by a statewide sick leave law.

Other states with current preemptive sick leave laws are currently debating statewide sick leave bills. Often preemptive laws include local scheduling laws. This means that although a state may have a law preempting local scheduling laws, it could become a statewide mandate.

Traditionally, even when a law doesn’t pass the first, or even the second time, it is introduces, it does often pass in a later year. Employers must be aware of these laws and their growing popularity.