“Fair workweek” laws are sweeping the nation, bringing new challenges for employers. Also referred to as “predictable scheduling,” “advanced scheduling,” or “secure scheduling laws,” these laws typically require larger employers in restaurant and retail industries to provide employees with advanced schedules and “predictability pay” if schedules are changed after a certain time period before an employee’s shift.
Earlier this month, Pennsylvanian politicians and labor leaders introduced state fair workweek laws, which would require large hospitality, retail, and food service companies to provide employees with schedules two weeks in advance or, alternatively, compensate employees if their shifts were adjusted at the last minute. These proposed laws are similar to the Philadelphia Fair Workweek Employment Standards Ordinance signed into law in December 2018, which required employers to: (1) give existing employees the right of first refusal to work additional hours before hiring new employees; (2) post and provide advance written notice of work schedules; (3) provide predictability pay for any departures from the posted schedules; and (4) permit a rest period of nine hours between shifts.
Between 2014 and today, numerous city governments have passed Fair Workweek laws in order to regulate industries like retail and fast food. These cities include New York City, Seattle, San Francisco, San Jose, Washington, D.C., and more, with Chicago, Los Angeles, and Boston currently considering fair workweek legislation. At this point, Oregon is the only state to pass a state-wide fair workweek law, however, states like Illinois, Maine, Massachusetts, and Pennsylvania (as noted above), have also seen fair workweek legislation proposed at the state level.
Although the laws vary widely, depending on the industry, employer size, and city, there are common requirements and prohibited practices among most fair workweek laws, including, but not limited to:
- Providing employees with advance and sometimes written notice of their work schedules, ranging from 72 hours to 14 days in advance, and permitting employees to request changes to these schedules;
- Providing employees with the most current version of the work schedule for all employees at the at work location;
- Banning or limiting the use of “on-call scheduling” for employees, which requires an employee to be available to work, to contact the employer or to wait to be contacted by the employer, in order to determine whether the employee must report to work;
- Presenting employees with good faith estimates of employee’s work schedule on or before their start date, including average weekly hours or expected hours each week;
- Paying employees over their scheduled rate of pay per hour if the employee’s scheduled hours are reduced without the requisite advanced notice;
- Considering employee requests not to be scheduled for certain times or work locations; and
- Providing employees with a private right of action for violations of the fair workweek laws for remedies including compensatory damages, liquidated damages, attorneys’ fees, and equitable relief.
Notwithstanding such restrictions, some fair workweek laws have delineated exceptions, useful and practicable for employers and their fast-paced industries. In New York City, for example, certain retail and food service employers may (1) grant a retail employee time off pursuant to an employee’s written request; (2) allow an employee to voluntarily trade shifts with another employee; and (3) make changes to employees’ work schedules with less than 72 hours’ notice, if the employer’s operations cannot begin or continue due to (a) threats to the retail employees or the retail employer’s property; (b) the failure of public utilities or the shutdown of public transportation; (c) a fire, flood or other natural disaster; (d) a state of emergency declared by the President of the United States, Governor of the state of New York or Mayor of the city; or (e) severe weather conditions that pose a threat to employee safety. Oregon’s fair workweek laws have similar exceptions, and also permit employers to maintain a list of “voluntary standby” employees, who have requested to or agreed to take on extra shifts in advance in writing.
In light of the passage and proposals of fair workweek/predictive scheduling legislation, industry groups across the country are challenging these laws. For example, in December 2018, three New York City industry groups (the International Franchise Association, the New York Restaurant Association, and the National Restaurant Association) brought a lawsuit attempting to void the NYC’s fair workweek laws on the grounds that the state labor law preempts the city from enacting or enforcing more restrictive scheduling and workplace laws. The groups also argued that NYC’s fair workweek laws unfairly target franchise and multi-location employers who are required to comply with the laws, as opposed to smaller businesses with less employees and fewer locations. More challenges to fair workweek laws are expected in cities and states where this legislation is being proposed, including Massachusetts and Philadelphia.
As cities and states are proposing and amending fair workweek and predictive scheduling legislation, employers, particularly in the retail, hospitality, and food service industries, should take proactive action. Employers should evaluate their scheduling and payment practices, as well as prepare the required notices to employees in their scheduling and hiring processes. Multi-state or multi-city employers may be forced to comply with different fair workweek laws in each jurisdiction, so these employers must be careful to understand the nuances of local laws, agency opinion letters, and court actions and rulings that govern this area of the law.