As if the DOL’s new Fair Labor Standards Act regulations weren’t enough to fill your plate this year, a recent interview (subscription required) that the DOL’s Wage and Hour Division Administrator David Weil gave to BNA’s Daily Labor Report has added to what portends to be a monumental shift in wage and hour law.
In an interview with BNA’s Gayle Cinquegrani, Weil teed up another “emerging issue” on the DOL’s radar: the concept that workers should have some rights to a predictable, stable work schedule, or at least to advance notice of it. Weil said that the Division is “looking very actively at that issue now” because of the “big work life balance issues” it raises.
This latest blip on DOL’s “radar screen” of issues appears to be an extension of its so-called “Right to Know” initiative from late 2012 and early 2013. You may recall that the DOL announced its intention to conduct a survey “to collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.” Among the rights the DOL was considering was an employee’s right to be notified of their hours worked, pay rates, and wages paid. The DOL’s Right to Know initiative never got off the ground, but Weil may be moving the Wage and Hour Division back in that direction.
Weil conceded that “It’s an open question” as to whether the FLSA covers predictable scheduling. Certainly, the DOL has not published anything to date that would suggest it has found that the FLSA regulates work schedules. Weil does not elaborate further, noting only that he believes that computerization should enable employees to give “input” on their scheduling by going online and voluntarily filling employer requests for shift openings. Weil’s comments may seem to display a misunderstanding of the way employers set schedules, but could just reflect a Utopian view of the workplace.
The upshot appears to be that the Wage and Hour Division would like to find a way to transform a good business practice (maintaining employee relations by maintaining predictable schedules) into an administrative mandate. For now, this is just an issue on the radar screen, not a definitive target for the Wage and Hour Division. However, employers should keep watch on this front as well, in case the DOL makes a formal predictable scheduling proposal.
