The past several years have seen a number of state and local laws increasing the minimum wage, providing paid sick leave and “banning the box,” among other things. The next big trend in employment law could turn out to be predictable scheduling.
As more and more employers adopt “just in time” scheduling and other practices meant to minimize labor costs, employee advocates are arguing that workers should be given advanced notice of their schedules and be compensated if their schedules are changed.
So far, only one such predictable scheduling law has actually been enacted: San Francisco’s Fair Scheduling and Treatment of Formula Retail Employees Ordinance, which took effect last July. (And new rules take effect on March 1.) But similar legislation has been introduced:
- At the federal level, with the Schedules That Work Act;
- At the state level, with bills in at least 10 states, California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon; and
- At the local level, in cities like Minneapolis, Seattle and Washington, D.C.
Many of these bills also address the related issues of on-call time and reporting time.
Federal law and some state laws require that employees must be paid when they are required to remain on their employer’s premises or at least be so close that they cannot use the time effectively for their own purposes. Federal courts and the U.S. Department of Labor have weighed several factors — such as required response times and geographical restrictions — to determine whether an employee can use on-call time effectively for personal purposes.
Many predictable scheduling bills would tighten these requirements even further, for instance by requiring that employees be paid an hour’s wages if they are required to call in less than 24 hours before the start of a potential shift to learn about their schedules.
Similarly, some states also require that employees be paid for reporting time or show-up time — when they show up to work but no work is available, or if they are sent home before the end of their scheduled shift. As with on-call time, many predictable scheduling bills would establish or expand reporting time requirements.
Last year, several retailers – including Bath & Body Works, Victoria’s Secret, the Gap, Abercrombie & Fitch, Urban Outfitters, Pier 1 Imports and J.Crew – agreed to end their on-call scheduling practices after New York’s attorney general warned them they might be violating the state’s reporting pay requirements.
Those retailers ended on-call scheduling nationwide even though reporting time is not required in all states. Perhaps they wanted a uniform policy, or perhaps they sensed which way the wind is blowing and wanted to stay ahead of developing predictable scheduling laws.
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