Unpredictable Scheduling Practices and Scheduling Legislation: An Explainer

Published June 15th, 2016 -  - 06.15.1615


Over the past two years, advocacy and media attention around work scheduling has expanded dramatically. In 2014 and 2015, ten states and Democrats in Congress introduced legislation to increase scheduling predictability for workers.  In April, Seattle legislators followed suit and announced that they are drafting a scheduling ordinance.  Hillary Clinton mentioned the issue in a campaign speech on economic policy, and nine attorneys general have now sent letters asking for information on businesses’ on-call scheduling practices, following inquiries by New York Attorney General Eric Schneiderman.

To provide background on these developments, this post explores the issue of unpredictable scheduling and the laws and legislative proposals addressing it.

Workers with unpredictable or “just-in-time” schedules have little notice of their schedules and work a highly variable number of hours each week.

The use of scheduling software has increased the instability of work schedules.  Such software allows companies to closely match labor needs and consumer traffic taking into account weather, real-time sales, and deliveries.  Managers provide little notice of workers’ shift schedules and in some cases mandate that workers call in an hour or two before work to see if they are scheduled (often called on-call shifts).  Sometimes, workers are asked to go home after reporting for the start of their shift, leave halfway through their shift, or stay late.  These workers are also assigned a fluctuating number of hours each week.

Roughly 17 percent of workers have volatile schedules.   

Erratic schedules are particularly prevalent in the retail and food services sectors where one in three workers and one in five workers, respectively, have irregular schedules.  In a study of early career workers, ages 26 to 32, 41 percent of workers reported they did not know their schedule more than a week in advance and 74 percent of this group reported not knowing how many hours they would work in a given week.  This type of scheduling has coincided with the rise in involuntary part-time workers. In April 2016, 6.1 million employees worked part-time involuntarily.  EPI analysis shows that workers who make less than $22,500 annually are those most likely to have erratic schedules, more than any other income bracket. Varying schedules can make workers uncertain of their monthly income, impact their receipt of public benefits, and create challenges for planning part-time work, school work, and child or elder care.

Legislation has been introduced at the federal, state, and local level to curb these practices.

This legislation can be broadly divided into three categories: a right to request, advanced notice of schedules, and reporting time pay (including proposals aimed at curbing the use of split-shifts and call-in shifts).  Although the federal bill, the Schedules that Work Act, includes provisions addressing each of these categories, state and local legislation often includes some but not all of these proposals.

The Right to Request

Right to request provisions protect workers who ask for increased flexibility or predictability in their schedules.  Modeled after right to request laws in other countries, these provisions protect workers from retaliation for requesting a change in their schedules and, in some cases, include the right to receive their scheduling request.  However, this legislation gives businesses significant flexibility in denying these requests.

San Francisco and Vermont passed right to request legislation that protects employees from retaliation when they ask for changes in their schedule.  Effective on January 5, 2015, the San Franciscan Retail Workers Bill of Rights applies to “formula retail establishments” or retail stores, fast food businesses, restaurants, hotels and banks with more than 40 stores across the country and 20 or more employees in the city of San Francisco and includes a right to request among other protections.  The Vermont law has a similar right to request provision but applies to all employees.   The federal bill limits the right to request to businesses with 15 or more employees.

Each of these pieces of legislation, however, allows employers to deny an employee’s   scheduling request.  In the federal Schedules that Work Act, a business must grant requests to accommodate a worker’s child or elder care responsibilities, a second job, or a training or education program unless the employer has a bona fide business reason to refuse.  Similarly, the San Francisco ordinance allows employers to refuse to grant requests for a bona fide business reason, and in Vermont, an employer can refuse to grant a request if it interferes with business or contractual obligations.  While this right to request is more protective than prior legislative efforts, each piece of legislation contains a list of enumerated business reasons for denying a request, which provide employers with wide latitude to deny requests.  For example, the federal bill includes reasons such as “the identifiable burden of additional costs” and “a significant detrimental effect on the employer’s ability to meet organizational needs or customer demand.”

Advanced Notice Requirements

Some state proposals and the federal proposal require employers provide at least two weeks advance notice of work schedules. The San Francisco ordinance also includes an advanced notice requirement.  Advance notice laws require two weeks notice with compensation of an extra hour of pay for any changes made within 24 hours of being scheduled to work for covered workers.

Reporting Time Pay

The most common state protections are reporting time pay laws.  Eight states, D.C., and Puerto Rico have reporting time pay requirements. Although the details vary, these laws require employers to pay workers, who are sent home after reporting to work, wages equivalent to some minimum number of hours.  The federal bill guarantees workers in the restaurant, food service, or cleaning sectors (the Secretary of Labor can add sectors through regulation) four hours of pay or the number of hours the employee had been slated to work if she planned to work less than four hours.  This legislation also requires employers who use call-in shifts with less than 24 hours notice, or who ask employees to work nonconsecutive shifts, to compensate workers with an extra hour of pay.

Remedies

The federal bill creates a private right of action for covered employees whose employers have violated the reporting time pay, split shifts, or advance notice requirements.  The bill also provides a private right of action for those who have been retaliated against for asking for a scheduling change.  Employees can sue for lost compensation, monetary losses, and equitable relief.  The bill also provides for administrative enforcement by the Department of Labor (DOL).  The DOL can recover lost compensation on behalf of employees and includes maximum penalties for repeated and willful violations of $100 per an advance notice violation and of $1,100 per a retaliation claim.

Possibility for Action 

The current make up of Congress makes action on the federal bill highly unlikely.  However, the Seattle City Council seems likely to pass a scheduling ordinance. The Seattle City Council has been soliciting responses from labor and business and is in the process of drafting a bill.  A majority of council members and the mayor have backed the proposal and enactment of an ordinance is forecasted to occur this summer.

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