Human Resource Executive: Bringing Predictability to Scheduling

Originally published 09/18/2017

The fair work week movement racked up a major victory this summer, as Oregon became the first state to enact a predictive scheduling law. Signed into law last month by Gov. Kate Brown, the Fair Work Week Act was passed with bipartisan support in both the House and Senate.

When the law goes into effect in July 2018, employers in the retail, hospitality and food-service industries will be required to give workers their schedules in writing at least one week in advance. Starting in 2020, that advance notice extends to two weeks. They must also give workers a minimum 10-hour break between shifts or pay them extra. The law only impacts companies with 500 or more employees.

While Oregon is the first state to pass such legislation, it follows the path of U.S. cities which have enacted similar laws. In 2014, San Francisco became the first city to pass fair workweek legislation with its Retail Workers Bill of Rights. It was followed by Seattle, New York, Washington, San Jose and Emeryville, Calif. Employment law experts stress the significance of such legislation at the state level.

"Oregon is going to become an incubator that tests exactly how well predictive scheduling works and its impact on employees and businesses," says Stephen Scott, an associate in the Portland office of Fisher Phillips. "It will provide an idea as to where this could head next, either at a statewide level with other employee-friendly states or if it starts to gain momentum and a federal law actually gets passed in some regard."

In June, Congresswoman Rosa DeLauro and Sen. Elizabeth Warren reintroduced the Schedules that Work Act, originally introduced in 2014. Like the Oregon law, it would require employers to provide schedules two weeks in advance, along with extra shift pay when employees' schedules are changed abruptly or they are assigned to particularly difficult shifts, including split shifts and call-in shifts.

Proponents of the fair workweek concept generally agree the likelihood of passing federal legislation is bleak, particularly with Donald Trump in the White House and Republicans controlling both the House and the Senate. According to Carrie Gleason, director of the Brooklyn-based Center for Popular Democracy's Fair Workweek Initiative, the Trump administration has inspired local and state policymakers to take action at the state and local level because "they can't count on the federal government protecting us."

Other states considering similar initiatives include Connecticut, California, North Carolina and Ohio. In June, lawmakers in the Windy City introduced the Chicago Fair Workweek Ordinance. If passed, Chicago employers would be required to post workers' schedules at least 14 days in advance and to pay them an extra hour of "predictability pay" if their schedules are changed after that time. If employees' hours are cancelled or reduced with less than 24-hour notice, they would be eligible for up to four hours of pay to compensate them for the lost income.

Support for such legislation is strong, at least among the general public. According to a recent poll of more than 5,000 working people by the Center for Popular Democracy, 73 percent of Americans back laws that require employers to give workers stable hours, input into their schedules and more opportunities for full-time work. The poll also revealed 67 percent of hourly workers are subject to unfair scheduling practices and 38 percent experience varying number of hours from week to week.

While workers welcome such legislation, employer-centric organizations such as the National Restaurant Association and National Retail Federation, have come out in staunch opposition to fair workweek laws. In a written statement, the National Retail Federation argued that "a one-size-fits-all, government-mandated solution ignores the realities of what it takes to run a business and adds to the growing number of laws and regulations that drive up consumer costs and contribute to the loss of jobs in communities the retailer serves."

That comes as no surprise to Eric Steinert, a partner in the labor and employment department at Seyfarth Shaw in San Francisco. "You will definitely see the industry push back on this, because they are not going to be able to meet these unpredictable changes in customer demand and they are going to lose business as a result," he says.

For employers in states with fair workweek legislation, there will be challenges, as they are forced to rethink their scheduling practices and processes to comply with the requirements. However, the vast majority of businesses won't feel much of an impact at all because such legislation primarily targets "specific businesses that have been found to be some of the worst actors," according to Hannah Taube, spokesperson for Oregon Working Families Party.

"There are going to be a lot of businesses that are scared about a new labor law going into effect, but then learn they don't have to change much of anything if they already have a pretty contentious process around scheduling," says Taube. "As long as you take into mind the ways that work schedules affect workers and be fair and treat your employees as humans, you are probably already complying with these laws."

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