How predictive scheduling laws will impact employees during COVID-19

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In this unpredictable time, some cities and states now have legislation requiring heightened scheduling predictability, a move that can protect employees.

Predictive scheduling legislation sets forth regulations that require employers to provide workers with their schedule in advance, allowing them to better plan their budget and schedule, while discouraging employers from making last-minute changes that negatively impact employees.

Last month, Chicago passed the “Fair Workweek” ordinance and joined a growing number of cities and states to pass predictive scheduling legislation. The ordinance will enforce the idea that employees should have predictable schedules at work.

“When employees can't accurately predict when they will be working, it makes it very challenging to make a living, to sustain a family, to meet other household obligations, to go to school or to work a second job,” says Sara Fowler, an employment advisor and litigator at law firm Seyfarth Shaw. “[Through this legislation], employees will get more predictability about when they'll be working, and they'll be compensated to help ease that hardship when there are scheduling changes.”

San Francisco was first to establish legislation around predictive scheduling in 2015, with its Formula Retail Employee Rights Ordinance, which protected employees at any bar, restaurant or retail store with 20 or more employees. Now, just one state 一 Oregon 一 and 5 additional cities 一 Philadelphia, Seattle, Emeryville, New York City and Chicago 一 have passed similar ordinances.

Chicago’s law outlines four targets: predictability of pay, right to decline last-minute schedule changes, opportunity to work additional hours and the right to request a flexible schedule. If the ordinance is violated, or if a schedule is changed within 10 days of a shift, employers are required to pay the employee “predictability pay” to make up for the last-minute loss or addition of a shift. The ordinance only applies to exempt employees who earn less than $50,000 a year.

According to Fowler, Chicago’s law is unique in that it expands to industries beyond retail and hospitality. Chicago’s ordinance applies to any firm with more than 100 employees within healthcare and retail and those that work in hotels, restaurants, building services, manufacturing or warehouse services.

“With the passage of the Fair Workweek Ordinance, Chicago has enacted the most expansive predictive scheduling law in the country,” said Chicago Federation of Labor President Bob Reiter in the ordinance press release. “Hundreds of thousands of Chicago workers will get much needed scheduling fairness on the job, which will result in the predictability needed to care for their loved ones, advance their educations and plan their financial futures.”

Not all states are on board with this type of legislation, with several forbidding the practice. Georgia, Iowa, Tennessee and Arkansas have state-wide legislation that forbids this type of ordinance. In a bill passed in 2017, for example, Arkansas argued that such laws put Arkansas employers at an economic disadvantage when compared to other states who do not have this type of law.

The instability of the coronavirus pandemic has added more roadblocks in enforcing predictive scheduling requirements. Because businesses have had to adapt by changing their hours or reducing business services, measures that penalize businesses who cannot operate normally have added challenges for cities and states.

Because of this, Chicago’s ordinance included a coronavirus exception, noting that if a firm experienced any material change to its operating hours, operating plan or goods and services because of the pandemic, the ordinance does not apply.

Fowler notes that, while this is an important exception that can protect the safety and financial security of a business during unpredictable times, it’s not quite as straightforward as it sounds.

“Businesses are trying to learn this brand new law, which is complicated, while also dealing with a host of other factors in trying to keep their business up and running,” Fowler says. “For example, for businesses that have several employees who test positive and need to close down to do deep cleaning, that's a pretty clear case of a material change… But there are a lot of subtle aftereffects of COVID-19. If one employee called off because they're sick or they're being quarantined, I don't think that would qualify as a material change that would excuse you from the predictability pay requirements.”

Similar to the Chicago exception, Oregon’s 2017 predictive scheduling law included an exception in the case of “extenuating circumstances such as natural disasters or declarations of public officials” 一 an exception that Oregon Labor Commissioner Val Hoyle said applied to the pandemic.

For employees, the exceptions help clarify their rights during the pandemic, and ensure that employers are still working to give their employees the ability to reliably plan their work schedule and budget.

At the end of the day, it’s the employers’ responsibility to ensure that they’re in compliance with predictive scheduling laws for the jurisdictions in which they operate, while at the same time being aware of the coronavirus exceptions.

“It's been very challenging for employers… [They] are all trying to do the right thing,” Fowler says. “They're grappling with a lot of different and difficult circumstances: they're trying to keep businesses afloat while trying to keep their employees with jobs.”

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