Workplace flexibility has been a trending concept in HR for some time now. Many employers and workers are fans of the concept because it does not tackle the question of if work gets done, but when and how. (The gig economy surged in part because of the concept.)
The reasons for engaging in predictable scheduling practices and allowing alternative or flexible scheduling include:
- Promoting work-life balance;
- Reducing interference with employee’s personal lives;
- Allowing for better planning;
- Allowing for second jobs;
- Reducing stress; and
- Reducing work-family conflict.
However, from an employer’s perspective, the enforcement landscape has developed into multiple compliance obligations that intersect with a number of already regulated areas, such as wage and hour, payroll and leaves of absence.
Bruce Sarchet of Littler Mendelson discussed the evolution of workplace flexibility from a regulatory perspective, focusing on the topics of predictable and flexible scheduling during an XpertHR webinar.
Flexible and Predictable: The Differences
Flexible scheduling laws create a legally protected right for employees to seek accommodations and changes in their schedules. These laws are also referred to as “right to request” laws, because they protect an employee’s right to be free from retaliation in the event that the employee requests some flexibility in his or her schedule. The first flexible scheduling law was San Francisco’s Family Friendly Workplace Ordinance (enacted in 2013).
Absent specific legislation, flexible scheduling (or modified work schedules) can be a desirable workplace practice and act as a reasonable accommodation under the Americans with Disabilities Act (ADA).
Flexible scheduling laws usually are not accompanied with the type of onerous regulation that predictable scheduling laws have, nor are the penalties for noncompliance as steep.
Predictable scheduling laws (or predictive, secure or fair scheduling) require an employer to provide advance notice to employees of work schedules. If an employer fails to comply with the advance notice provisions, then it may be responsible for “predictability pay” or additional penalties for making changes to posted work schedules. In addition, employees could have a right to refuse work if the schedules are not communicated in advance.
Various provisions also require employees be provided an “opportunity to work” – any new hours should be offered first to existing employees before hiring additional workers.
Many of these laws have so-called “clopening” provisions, in which an employee may not be scheduled for back-to-back closing and opening shifts without additional pay (or an employer risks an even greater penalty). In other words, employees should be guaranteed a minimum amount of time between shifts.
Predictable scheduling laws tend to have some other commonalities:
- Records must usually be kept for at least three years;
- Advance notice of changes or schedules is required on the part of employers; and
- Employers must provide notice to new hires regarding schedules.
In 2014, the San Francisco Retail Workers’ Bill of Rights first introduced the concept of “predictability pay,” and other progressive jurisdictions were quick to study the issue and eventually enact similar laws. At first, these laws were only limited to a very few municipalities and initially targeted to only certain industries: retail, fast food and hospitality.
However, the predictability’s reach continues to grow.
A poll of webinar attendees revealed a wide range of advance scheduling practices, which may be dictated by the nature of an employer’s industry (e.g., providing services that require on-call scheduling):
If operating under certain jurisdictions’ requirements, up to 39% of webinar attendees could be subject to predictability pay provisions and/or associated penalties.
The Employer’s Perspective
Although workplace flexibility programs can be a win-win for employers and employees alike, the increasing regulation of how and when an employer may schedule an employee to work has created onerous obligations for employers. The shift from flexible to predictive or secure scheduling has resulted in steep fines and increased business costs for some.
From an employer’s perspective, predictable scheduling laws tend to:
- Be restrictive;
- Reduce operational flexibility;
- Increase costs of operation;
- Increase likelihood of threats of administrative penalties or court claims; and
- Bring challenges related to the complexity of multijurisdictional compliance.
The multijurisdictional nature of scheduling regulation results in a patchwork of compliance obligations rather than a consistent overarching law. The SHRM Advocacy Team has supported a workflex bill (H.R. 4219 – Workflex in the 21st Century Act) in order to achieve this uniformity.
As Sarchet explained, the SHRM-backed legislation would aim to become the “ERISA of leaves of absence,” normalizing scheduling laws in the same way that ERISA established a common compliance framework for retirement plans. In other words, the legislation could provide predictability to employers and even provide relief to employees in states that have preempted this type of legislation at the municipal level.
The workflex bill would:
- Expand paid leave;
- Provide workplace flexibility opportunity for all employees; and
- Offer automatic compliance with all state and local requirements to an employer that offers a minimum threshold of paid leave and flexible work options.
However, the workflex bill has stalled in committee, and its future is uncertain.
Evolving Legal Landscape
The majority of XpertHR webinar attendees did not operate in a jurisdiction with a scheduling law:
However, this may soon change. While certain jurisdictions (including Vermont and New York City) have flexible scheduling laws, others may soon follow suit (including Arizona, California, New Jersey and Wisconsin).
There are also predictable scheduling bills pending in:
- New Hampshire;
- Vermont; and
Various questions from attendees centered on who is covered by the specific scheduling laws. For example, many of these laws do not specify employer coverage in circumstances where an employer has enough employees to be covered as a whole, but not in the specific jurisdiction.
Sarchet described New York City’s attempts at responding to “frequently asked questions” by retail and fast food employers as complex to say the least: the resulting document is a whopping 36 pages long. (The Temporary Schedule Change Law, which applies to all New York City employers, has FAQs that constitute an additional 11 pages of dense reading.)
Even more frustrating to employers, because this is an area of the law that continues to develop, many answers to questions continue to be “it depends,” because many complexities remain unresolved by regulators or the courts.
While compliance may be challenging, it is very possible. Sarchet offered practical suggestions for employers to comply with scheduling laws and engage with employees:
- Focus on front-line supervisors. As with most compliance challenges, having a competent, knowledgeable supervisor who listens to concerns is key. One of the most important qualities in a supervisor who is dealing with scheduling issues is knowing when to say, “I’ll look into it and get back to you.”
- Designate a predictable and flexible scheduling guru. (HR, we’re looking at you.)
- Train local HR and operations staff. Training those HR professionals and supervisors who will deal with these kind of requests and situations is an employer’s best defense against employee claims and administrative fines. Resolving issues earlier rather than later is good business – and scheduling – practice.