Predictive Scheduling: Coming Soon to a Lawsuit Near You

Although it may sound like the latest mobile phone app, “predictive scheduling” refers to the legal requirement of providing employees advance notice of their schedules.  The feeling is that it reduces absenteeism and improves job satisfaction to have advanced notice of work schedules.  The disadvantages for employers includes reduced ability to have a flexible workforce, and eliminating “on-call” employees, where they call in to see if they are scheduled.  Many employers, particularly in the restaurant and retail industries, rely on such practices to keep labor costs down and to remain competitive in the age of internet shopping and meal ordering via cell phone apps.

If you have employees on either coast, predictive scheduling laws are likely coming to a major city or state near you.  Fast on the heels of the $15/hour movement, the cities of San Francisco, Seattle, New York, and now the state of Oregon, have all passed their own predictive scheduling laws.  Los Angeles and California are likely next.  The laws vary widely and are particularly focused on “on-call” shifts.

San Francisco’s recent predictive scheduling ordinance requires retail employers with 20 or more employees to provide new employees with a “good faith” written estimate of the minimum number of scheduled shifts per month, and the days and hours of those shifts. Employers must also give all employees their schedules at least two weeks in advance.  If the employer deviates from the schedule with less than seven days’ notice, the penalty is one to four hours of pay at the employee’s regular rate, depending on the amount of notice provided and the length of the shift. “On-call” shifts are still permitted, but the employer must provide two to four hours of additional pay if the employee is not called into work.

On the opposite coast, New York City recently passed a predictive scheduling ordinance that requires all retail employers located in the city to provide employees with a written work schedule at least 72 hours before the first shift on the schedule. In contrast to the San Francisco ordinance, however, the law expressly prohibits scheduling retail employees for “any on-call shift,” or requiring an employee to work with fewer than 72 hours’ notice, unless the employee consents in writing in advance.

Not to be outdone, the Los Angeles City Council is currently considering a "fair workweek" law.  The City Attorney has been instructed to craft an ordinance that would apply to employers based in Los Angeles with 300 workers or more, regardless of where those workers are based. The Los Angeles ordinance would cover retail and grocery store workers, but unlike rules passed in other cities, it would not apply to fast food workers.

Based on the foregoing, if you are an employer concerned that predictive scheduling is coming for you, there are some things you can do to prepare.  First, try to ween your scheduling off “on-call” shifts as much as you can.  These appear to be the biggest targets in the predictive scheduling movement.  If you need flexible shifts, at least eliminate mandatory reporting and discipline for failure to call in so you do not have to pay for the “reporting time” pay (which is based on federal wage and hour law).  Keep in mind that federal law also mandates that having employees "on call" or "on standby" waiting to be called in, is compensable time if they must report when called and cannot use their free time for their own purposes.

Another preventative measure is to try to post schedules in advance as regularly as you can – and let employees assist in filling in the gaps. Many employers cover their core schedule by providing their full-time employees with predictable shifts, and then fill in gaps with part-time employees.  If you do not assign a part-time employee a shift, but post available shifts as they arise and give unscheduled employees the right to request them, you avoid the pitfalls of most of the new predictive scheduling laws.  Similarly, if employees exchange information and want to swap shifts on their own, there is nothing in the current laws that prevents an employee from voluntarily agreeing to a different shift on short notice.

Whether you view predictive scheduling laws as a good idea, or more “nanny state” control your business, your employees will likely be talking about them, and this new breed of wage and hour laws may be coming to a lawsuit near you soon.