Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered enacting such laws, which are designed to ensure that employees are given consistent, predictable schedules. (They have therefore also been termed “predictive scheduling” laws). To date, such legislation has been passed in San Francisco; Seattle; Emeryville, California; New York City; and, most recently, Oregon, where the bill is currently awaiting the governor’s signature.
These “fair workweek” or “predictive scheduling” laws share many of the same fundamental features. Perhaps most importantly, these laws aims to restrict an employer’s ability to adjust an employee’s schedule on short notice. Accordingly, such legislation tends to prohibit “on-call scheduling,” the practice of requiring an employee either to be available to work, or to contact the employer (or to wait to be contacted by the employer) to determine whether the employee must report to work. Additionally, these laws may prohibit an employer from requiring an employee work without providing certain notice, or canceling an otherwise scheduled shift without providing certain notice, unless the employee is paid a premium or bonus for that shift. Moreover, this type of legislation may require employers to give new hires a good faith estimate of their work schedule; provide employees with certain advance notice of their work schedules; and/or offer available work shifts to current employees before hiring new employees. Finally, the “fair workweek” laws which have been passed to date apply only to larger retail and/or fast food employers. (For instance, New York City’s laws – which go into effect on November 26, 2017 – will apply only to retail companies with more than 20 employees in New York City and to fast food establishments which are part of a chain with at least 30 locations nationwide.)
Although the first “fair workweek” law in the country was passed just three years ago (by San Francisco), the movement appears to be gaining significant traction. Indeed, lawmakers in California, Connecticut, the District of Columbia, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Michigan, New Jersey, New York, and Rhode Island have recently considered proposed “fair workweek” laws, and Senator Elizabeth Warren (D-Mass.) sponsored a federal bill in 2015 called the “Schedules that Work Act” which shares many similarities with its state counterparts. Accordingly, we fully expect to see an expansion of these laws over the next few years.
Employers should also be aware that, even if they are not required by law to adopt such policies, a handful of state attorneys general have taken action to pressure companies into voluntarily ending on-call scheduling and implementing policies consistent with “predictive scheduling” legislation. Over just the past couple of years, attorneys general from California, Connecticut, the District of Columbia, Illinois, Maryland, Massachusetts, Minnesota, New York, and Rhode Island have successfully persuaded over 10 large retail companies to cease the practice of on-call scheduling, impacting an estimated 50,000 workers nationwide.
Given the rapid rise of these laws, which can have quite technical requirements, employers are encouraged to reach out to counsel to ensure that they are aware of their obligations when scheduling their workers.
