Last-Minute Schedule Changes? Some Cities Say Employers Must Pay

By Jay-Anne B. Casuga

More than a dozen states and cities in the past year considered legislation to require retail stores and restaurants to provide extra pay to employees for last-minute work schedule changes. Thus far only a handful of cities have enacted such measures into law.

These predictive or predictable scheduling proposals, also called fair workweek measures, were “very popular” in 2016, John S. Hong, an employment law attorney with Littler Mendelson in San Francisco, recently told Bloomberg BNA.

“But they died on the vine in a lot of states,” Hong said

In addition to providing “predictability” pay, these measures would require employers to notify workers about their schedules a certain number of weeks in advance under predictive scheduling proposals. They also include “access to hours” provisions that require employers to offer newly available hours to part-time staff before hiring new workers or using contractors or staffing agencies.

Worker advocacy groups praise these measures as providing secure, clear and stable scheduling for workers. But employers counter that these requirements remove the flexibility needed for retailers and restaurants to operate their businesses effectively.

Predictive Scheduling Is ‘The Next Fight.’

Predictive scheduling bills this year were withdrawn or never went to a vote in California, Indiana, Kansas, Maryland, Michigan, New York and Rhode Island.

Similar bills or provisions died in Connecticut, Illinois, Maine and Oregon in 2015.

Washington, D.C., also tabled a predictive scheduling proposal this year, while a court rejected a ballot initiative on the issue in Cleveland, Hong said.

Still, employee advocates said the number of jurisdictions that have considered scheduling laws is encouraging.

Introduction of the bills initiates public conversations among workers, employers and policy makers about the issue, they said.

“They begin the legislative process, which can take multiple years,” Elianne Farhat, deputy campaign director of the Center for Popular Democracy’s Fair Workweek Initiative.

Predictive scheduling is “the next fight,” following the success of the “Fight for $15″ minimum wage initiative, Farhat told Bloomberg BNA Nov. 30.

“The issue will continue to pick up steam and move forward,” she said.

Two Cities Join San Francisco

Two cities this year enacted predictive scheduling laws. Seattle and Emeryville, Calif., followed in the footsteps of San Francisco, which passed the nation’s first ever predictive scheduling law in late 2014 (see related story).

Rules implementing San Francisco’s ordinance went into effect in March 2016. They apply to businesses that have 20 or more employees in the city and at least 40 retail sales establishments worldwide.

Seattle and Emeryville’s laws take effect in 2017.

Seattle’s law applies to retail and quick or limited food-service establishments with more than 500 employees worldwide and full-service restaurants with more than 500 employees and 40 full-service locations worldwide.

Emeryville’s law applies to businesses with more than 55 employees worldwide.

New Hampshire, San Jose Also Pass Laws

On the predictive scheduling periphery are San Jose, Calif., and New Hampshire, which passed narrower laws in the past year.

San Jose voters approved a ballot initiative in November that focused only on access to hour protections for part-time employees, meaning they would be given extra hours prior to hiring others.

New Hampshire in June didn’t quite enact a predictive scheduling law. Instead, it required employers to consider employee requests for flexible working arrangements and prohibited employers from retaliating against workers who made those requests.

The New Hampshire law is “minimal, but still important,” Liz Ben-Ishai, senior policy analyst at the Center for Law and Social Policy in Washington, D.C., told Bloomberg BNA.

Farhat added that Washington, D.C. passed a law guaranteeing a 30-hour minimum workweek for building service workers, although it tabled its broader predictive scheduling law.

Depending on the needs of a particular locality, some cities or states will pass broader scheduling laws, while others pass narrower provisions.

“They’re all part of updating our work hour standards,” Farhat said.

Looking Ahead to 2017

Predictive scheduling bills are pending in New Jersey and Massachusetts, Hong said. But the latter “may die for lack of action” before the end of the year.

A measure also is pending in Minnesota, according to CLASP data, but it may share the same fate as the Massachusetts bill.

Asked if the issue of predictive scheduling will continue to crop up in 2017, Hong said more cities and states may consider such measures. But “ultimately they may die on the vine,” he said.

Ben-Ishai provided a more optimistic outlook for predictive scheduling.

“I think it’s a promising area moving forward,” she said.

State and local lawmakers in Oregon could consider predictive scheduling measures next year, she said. In 2015, a state predictive scheduling bill died in committee, but legislators preempted scheduling ordinances at the local level only until 2017.

Portland, Ore., already has passed a resolution to study and eventually establish workweek principles for city contractors, Farhat said.

New York Mayor Bill de Blasio in September announced that the city is developing legislation that would require predictable work schedules for about 65,000 hourly fast-food employees in the city.

Predictive scheduling is expected to come back in Washington, D.C. next year “in a very serious way,” Farhat said. And California may onceagain consider a statewide measure, she added.

Don’t Forget About State Preemption Laws

Hong observed that several states have preemption laws that prevent cities, towns and counties from passing workplace laws that conflict with state or federal law.

About 22 states so far have expressly preempted localities from adopting such laws, like those that would raise minimum wages, provide leave benefits or expand workplace anti-discrimination protections. Most of these state have enacted the laws within the last five years., Lawmakers in about 11 other states have introduced similar bills so far in 2016.

At least five states—Alabama, Arizona, Indiana, Kansas and Michigan—have laws that could preempt local predictive scheduling laws, Hong said.

Preemption laws don’t necessarily indicate that legislatures are against fair scheduling, he said. “They don’t want local governments doing something potentially inconsistent with state law,” Hong said.

But Ben-Ishai contended that preemption laws can be a strategy taken by lawmakers who “are not friendly to workers’ rights.”

Federal Predictive Scheduling Law?

A federal predictive scheduling bill known as the Schedules That Work Act (H.R. 3071S. 1772) was introduced in both houses of Congress in July 2015.

The identical bills were sponsored by democrats and have remained stalled in committee. They are unlikely to be considered for a vote before the year ends.

Ben-Ishai said she expects the bills’ sponsors, Sen. Elizabeth Warren (D-Mass.) and Rep. Rosa DeLauro (D-Conn.), will reintroduce the legislation in the next Congress.

But given Republican control of both Congress and the White House, Ben-Ishai said, “I don’t think we’re super optimistic about it moving forward.”

Predictive scheduling will have a better chance at seeing “more movement” at the state and local levels, she said.