As if there were not already enough seemingly well-intentioned but productivity damaging workplace laws and regulations, new work scheduling laws are being proposed at federal, state, and local levels. At the federal level, Sen. Elizabeth Warren (D-Mass.) in July 2015 introduced the Schedules That Work Act. The proposed legislation has little chance of success in a Republican-controlled Congress in 2016, but it is worth watching. Generally, the bill would require employers in the retail, food service, and cleaning industries (as well as others that may be designated by the Secretary of Labor) to provide each new hire with a written work schedule, including the minimum number of hours that the new hire will be assigned to work each month. If that initial schedule changed, the employer would be required to provide another written notification at least 14 days in advance of the date that the change would take effect. Among other things, the bill would also require minimum "reporting pay," which applies if an employee is scheduled to work a certain number of hours but is not actually given that amount of work after reporting; and extra pay for on-call time, split shifts, and schedule changes made on an "as needed" basis with less than 24 hours' notice.
Not to be outdone or willing to wait for federal legislation on the subject, a District of Columbia Councilmember on December 1, 2015, introduced the Hours and Scheduling Stability Act of 2015 in Washington. The proposed law, which would apply to retail employers with at least five locations across the country and to restaurant chains with 20 or more locations, would require covered employers to offer available work to current employees who are qualified before hiring new employees or using subcontractors. The announced intent of the proposal is to promote full-time work.
The D.C. proposal would also require employers to post schedules 21 days in advance of work and to pay workers up to four hours of pay if an employer changes a schedule. Schedule changes would have to be disclosed to the employee in advance, and a revised written schedule would have to be provided within 24 hours of the change. If an employer wants to add work time to an existing schedule, the employee may refuse the work. Any voluntary acceptance of added work by an employee would have to be in writing.
Employers should watch for more legislative proposals like these. In 2014, similar legislation became law in San Francisco despite vigorous opposition from local business groups, and comparable proposals are being considered elsewhere. The common thread in all the proposals is that they limit the ability of the employer and employee to negotiate on a full range of mutually advantageous arrangements and to agree on ones that could compensate the employee for flexibility in scheduling that some employers and employees desire.
