In a continuing trend, employers are abandoning on-call scheduling as states and cities continue to pass predictive scheduling laws.

1. What is Predictive Scheduling?

Predictive scheduling laws require employers to give employees adequate notice of when they will work so that they can plan for and around their work shifts.  The idea is that, unlike on-call scheduling, predictable schedules make it easier for workers, especially part-time retail and restaurant workers, to meet their needs, such as working another job, attending school, or arranging childcare.  The laws generally require employers to provide a certain amount of notice of schedule and impose premiums for last-minute schedule changes.

2. Where are Employers Subject to Predictive Scheduling Laws?

Oregon is currently the only state with a predictive scheduling law, following the lead of several cities including Seattle, New York City, Philadelphia and Chicago.  San Francisco became the first U.S. city to require large chains to provide predictable schedules to their workers and janitorial and security services.

a. What Is Required?

San Francisco’s Formula Retail Employee Rights Ordinances (“FRERO”) and New York City’s Fair WorkWeek Law regulate hours, retention, scheduling and treatment of part-time employees at covered businesses.  The FRERO applies to formula retailers, or “chain stores,” with at least 40 stores worldwide and 20 or more employees in San Francisco, as well as their janitorial and security contractors.  New York City’s Fair Workweek Law applies to all chain fast food establishments and to retailers with at least 20 workers within the city.

Notice of Work Schedules

In both San Francisco and New York City, employers must provide workers with their schedules at least 14 days in advance.  For new employees, employers must provide a written estimate of their monthly schedule.  Additionally, New York City bans on-call scheduling of retail workers, requiring retail businesses to provide 72 hours’ advance notice of work schedules.

Hours

Employers in San Francisco and New York City must offer any extra work hours to current part-time employees before hiring new employees or contractors.  New York City also gives preference to existing workers at the location where shifts are available, followed by existing workers from other worksites before the employer can advertise new shifts or hire new employees.

Written Consent and Premiums for “Clopenings”

New York City requires an employer to obtain an employee’s written consent and to pay a $100 premium to an employee who works a “clopening” – two shifts over two calendar days with less than 11 hours between shifts, usually involved where the employee closes the business one day and opens it the next.  San Francisco does not have a similar requirement.

Retention

In San Francisco, if a covered retailer is sold, the new owner must retain for 90 days any employees who worked for the former employer for at least six months before the sale.  New York City does not have a similar requirement.

Notice of Rights

San Francisco requires employers to post a notice of “change in control” and provide employees a notice of their rights when the business is sold.  New York City requires employers to provide employees notice of their rights under the Fair Workweek Law.

Retaliation Prohibited

Both San Francisco and New York City prohibit employers from retaliating against employees who exercise their rights by, for example, requesting predictability pay or reporting employer non-compliance with the laws.

Equal Treatment

In San Francisco, employers must provide equal treatment to part-time employees, as compared to full-time employees at their same level, with respect to (1) starting hourly wage, (2) access to employer-provided paid time off and unpaid time off, and (3) eligibility for promotions.  Hourly wage differentials are permissible if they are based on reasons other than part-time status, such as seniority or merit systems.  New York City does not have a similar provision regarding the equal treatment of part-time workers.

a. What Are The Potential Damages?

Predictive scheduling laws require the payment of “predictability pay” for schedule changes and on-call shifts.  In San Francisco, if an employer changes an employee’s schedule less than 7 days before the shift, it must pay the employee a premium of 1 to 4 hours of pay at the employee’s regular hourly rate.  If an employee is required to be “on-call,” but is not called in to work, the employer must pay the employee a premium of 2 to 4 hours of pay at the employee’s regular hourly rate.  The amount of predictability pay depends on the amount of notice and the length of the shift.  There are exceptions where the schedule change is outside the employer’s control – e.g., failure of public utilities, an earthquake or other Act of God, or another employee not showing up to work.

In New York City, the premium is $200 for fast food employers and $300 for retailers for each failure to provide work schedules in compliance with the law.  New York also requires retail employers to pay $500 or damages (whichever is greater) for on-call shifts or shift changes with less than 72 hours’ notice.  Additionally, New York imposes fines to the City for violations leading to legal action and provides a private right of action to recover damages.

3. Is Los Angeles Next?

In October 2019, the Los Angeles City Council asked the Office of the Attorney General to draft a Fair Workweek Ordinance, with recommendations on how to implement a fair workweek law in Los Angeles.  The proposed law would apply to retail establishments with 300 or more employees globally, which fall within certain retail trade categories and who directly or indirectly exercise control over the wages, hours or working conditions of any employee.  The types of retail businesses would include fixed point-of-sale retail, big box retail, grocery stores, and internet and mail order retailers.

Covered employers would have to give employees notice of their schedules at least 14 days in advance.  Employers would have to pay premiums to employees for call-in shifts, shifts not scheduled at least 14 days in advance, shifts cancelled within 72 hours, and shifts for which they have to call in first to determine if they are needed.

4. What About California?

In January 2020, California Sen. Connie Leyva, a former labor leader, introduced SB 850, the Fair Scheduling Act of 2020.  The bill would require grocery stores, restaurants and retail stores to give workers 7 days’ notice of their schedules or pay them premiums for providing less notice or cancelling shifts.

The Labor Commissioner would be charged with enforcing the bill and would be authorized to impose fines for violations.  Further, the Labor Commissioner, the Attorney General, or any employee aggrieved by violations of the bill would be authorized to bring an action to recover civil penalties, as well as attorney’s fees, costs and interest.

COVID-19 shortened the legislative calendar and the Senate sent only 10 employment-related bills to the Assembly this year.  SB 850 was held in committee in July 2020.  But given the trend toward predictive scheduling in the state, it is likely that SB 850 or some amended version of it will be passed by the California legislature.