Fair scheduling: updates and trends to watch

Around this time last year, I wrote a post about the fair scheduling trend. At the time, we predicted that we hadn’t seen the last of it, and a year later I think it’s safe to say we were right. Here’s a quick summary of what’s happened since then:

• Oregon’s governor signed the first state-level scheduling bill into law. The first phase of requirements took effect on July 1, 2018.
• Ontario and Quebec passed scheduling requirements that take effect Jan. 1, 2019.
• New York City enacted a law allowing employees to make up to two temporary schedule changes per year that took effect July 18, 2018.
• Following the passage of New York City’s scheduling law, New York State introduced proposed regulations at the state level.
• 10 states: Arizona, Connecticut, Hawaii, Illinois, Massachusetts, New Hampshire, New Jersey, Vermont, Virginia, and Wisconsin introduced scheduling bills.
• Chicago, Illinois and Philadelphia, Pennsylvania are actively considering scheduling bills.
• New York City and Quebec have introduced “right to disconnect” bills.

No two scheduling requirements are created alike, but they do share one thing in common: their goal is to provide employees (especially low-wage and part-time employees) with more predictable schedules and pay.

A recent study in Connecticut found that 88% of the state’s service sector workers are offered less than 40 hours per week at their jobs, and around 66% of them said they were unable to find supplemental work because their schedules with their current employer were too unpredictable. As retail and hospitality sector jobs continue to make up a larger part of the economy, lawmakers are becoming interested in ensuring these employees are able to earn a stable living, driving the increased activity we are seeing in this area.

Scheduling trends to watch

While it’s anyone’s guess as to what the next year holds, looking at both active and dead proposals can tell us a lot about what we’re likely to see. Many proposals are introduced, die, and are resurrected several times before finally being passed. So, if you want to see forward, sometimes it helps to look backward. Here are some trends we’re watching based on the latest activity:

Flexible work schedules:  

These requirements center around creating space for employers and employees to have conversations about temporary or permanent schedule changes without employees fearing lost hours, retaliation, or termination. Many of them focus on emergency situations or major life changes such as pregnancy, childcare, and family caregiving to serve as a complement to the ongoing sick and family leave trends.

Premium pay for schedule changes:  

The general idea behind these requirements is that employers must provide employees with premium pay when they make additions, subtractions, or even changes to employee schedules that result in no loss of hours.

There are lots of variations in how these premiums are calculated, including at a multiplier of the employee’s base rate or regular rate of pay, the rate they were scheduled to work, or a flat fee that can range up to $100.00 per employee, per change.

They also usually require that employees can refuse additional hours on short notice. Look for these requirements to interact with existing state or provincial requirements on premium pay for overtime, split shifts, and reporting time pay. We have seen a few proposals create or enhance these requirements along with schedule change premiums.

Call-in shift bans:  

These are requirements specifically banning the practice of requiring an employee to call their employer a certain amount of time prior to a scheduled shift to see if they can report to work. This once-common practice in the retail and hospitality industries was recently criticized by attorneys general from eight states and the District of Columbia for making employees’ pay unpredictable, and finding other work and arranging childcare difficult.

Adequate rest time:  

Taking a cue from existing law in the European Union, these requirements specify a mandatory window of time between daily shifts (usually 10-11 hours) for employees to rest and sleep, and usually provide employees who work within the rest period with premium pay.

Other variations we’ve seen require employees to have at least one full day off each workweek, or the ability to decline to work more than 14 hours per day. Public health officials are supportive of these requirements, stating that they decrease the spread of illness and accidents, and promote better mental and physical health.

Additional hours for part-time employees:

Several existing and proposed requirements focus on creating opportunities for part-time employees to accept additional work before a business hires new employees, and are meant to promote more full-time or near-to-full-time opportunities for existing employees.

The right to disconnect:

These proposals usually require employers to create policies that define the hours employees are expected to be at work. They may also ban businesses from requiring their employees to send or receive emails, texts, or other work-related communications during non-work hours, including while employees are out on paid or unpaid leave. Similar initiatives already exist in France, Germany, Japan, South Korea, and Spain and are a recognition that office workers also experience their own form of schedule disruption.

Retention pay:

We’ve only seen this in one proposal so far, but it’s worth mentioning as the start of a potential variation on the scheduling trend. It would entitle an employee to a certain amount of minimum pay (in this case, $150.00) per pay period, even if they performed no work.

Minimum work hours:

While only currently applicable to building service employees in Washington, D.C., this requirement states that employers must provide covered employees with at least 30 hours of work per week.

How scheduling impacts work-life balance and the business bottom line

While employee scheduling can be a minefield for managers, there is a possible silver lining. Many large retailers closely tracking these trends have decided there is a business benefit to proactively implementing some of these requirements to attract and retain talent in a tight labor market.

A recent study conducted by UC Hastings Law School at selected Gap stores in San Francisco and Chicago asked store managers to voluntarily post employee schedules with two weeks’ advance notice, provide their hourly employees with consistent daily and weekly schedules, and slightly increase their weekly hours. At the end of the trial period, average sales in the stores that had implemented the changes rose 7% over their control group counterparts, productivity rose 5%, and the stores experienced less turnover.

So, as it turns out, small policy tweaks that embody the spirit of these requirements may help not only your bottom line, but also improve employee engagement and reduce turnover.

Interested in learning more about scheduling laws and trends to watch, or have a question about fair scheduling? Join us at INSIGHTS 2018 to continue the discussion.

Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.