fair workweek – Workforce

September 25, 2024September 25, 2024

Predictive Scheduling Laws Explained: A Guide for Employers [2024]

Summary:

Inconsistent shifts and sudden schedule changes place undue financial and logistical stress on the lives of employees outside of work.
Predictive scheduling laws address this issue by mandating advance notice for schedules and premium pay for sudden shift changes. However, navigating these laws can be challenging due to varying city and state regulations.
Employers navigate predictive scheduling laws with specialized software that accounts for local labor ordinances, enforces fair scheduling practices, automates predictability pay, and maintains records.

Unpredictable shifts and last-minute changes have long been sources of financial instability and stress among hourly workers. In response, some cities nationwide have implemented predictive scheduling laws, also known as Fair Workweek laws, to create more predictable and transparent schedules for employees.

While predictive scheduling laws are intended to improve worker well-being and foster a healthier workplace, it is not always easy for employers to implement these new standards. Understanding the ins and outs of these ordinances is essential to avoid penalties and maintain workforce satisfaction and productivity.

Whether managing a retail chain, restaurant, hotel, or any business with hourly staff, this article will help you balance operational flexibility with legal compliance.

What are predictive scheduling or Fair Workweek laws?

Predictive scheduling laws are ordinances that promote fair schedule processes, including giving sufficient notice to employees about their work schedules.

While Fair Workweek ordinances may vary city by city, they typically include the following:

Advance notice of work schedules, typically 14 days in advance
Predictability pay or premiums when schedules change after the notice period
Right to rest between shifts or clopening bans
Right to decline shifts made past the advance notice or opportunities for extra hours
Good faith estimates of work schedules upon hiring

The impact of unpredictable schedules on workers

Unpredictable schedules are a significant source of disruption in workers’ personal lives. Employees cannot properly budget for the month, make plans with acquaintances, or reliably fulfill other obligations without an appropriate degree of certainty in their work schedule.

For shift-based workers, flexibility means knowing their work schedules well in advance, not the day before a shift so that they can plan for childcare, doctor’s appointments, second jobs, studies, and other obligations.

Financial pain points are another issue workers must contend with when their schedules are unpredictable. It’s hard for them to anticipate their earnings and manage their budgets when their income is erratic.

In response, some cities have passed rules around predictive scheduling to help alleviate such challenges for employees. So, which places implement Fair Workweek ordinances?

Where are predictive scheduling laws being implemented?

Oregon

Oregon is the only place where predictive scheduling laws are being implemented state-wide so far.

Covered employers

Businesses in the retail, hospitality, and food services industries that have at least 500 employees

Advance notice requirements

14 days in advance, including on-call work
Good faith estimates upon hiring
Employees can decline shifts that are not included in the written work schedule.

Predictability pay

Employees are entitled 1 hour at regular rate of pay plus wages if the following changes are made without advance notice:

Additional 30 minutes or more to a shift
Date or time change of a shift with no loss of hours
Additional work or on-call shift

Employees are entitled to half of their regular rate of pay if:

Hours are subtracted from the shift before or after they report for duty
Changes result in loss of shift hours
A shift is canceled
When they are scheduled for on-call work but are not called in

Rest hours and clopening

There must be a rest period of 10 hours in betweeen shifts. Employees can decline the rest period and be paid time and a half pay.

Exceptions

Additional pay is not required for schedule changes due to natural disasters or events outside an employer’s control, such as floods, earthquakes, tsunamis, wildfires, extreme temperatures, war, or explosions.

California

Berkeley

Covered Employers

Employers in the City of Berkeley with 10 or more employees in the:
- Building services, healthcare, hotel, manufacturing, retail, or warehouse services with 56 or more employees globally
- Restaurant industry and has more than 100 employees globally
Franchisees primarily engaged in the retail or restaurant industries associated with a network of franchises that employ 100 or more globally
Non-profit organizations in the building services, healthcare, hotel, manufacturing, retail, warehouse services, or restaurant industries and employ 100 or more globally

Advance notice requirements

14 days or two weeks’ notice
Good faith estimate for new employees
Employees have the right to decline hours that are added after the notice period.

Predictability pay

1 hour of predictability pay for any schedule change made between 1 and 14 days before a shift.
Up to 4 hours of predictability pay (or the number of hours reduced, whichever is less) for cancellations or reduced hours with less than 24 hours’ notice.
1 hour of predictability pay for adding, changing, or moving a shift with less than 24 hours’ notice.

Rest hours and clopening

Employers must allow employees to decline shifts that occur less than 11 hours apart.

Exceptions

Predictability pay is not applicable to employee-initiated shift swaps or changes. It is also not owed for grace periods of 10 minutes before and after a shift.

Access to hours for existing employees

Employers must offer any additional hours to existing part-time employees before hiring new staff or temporary workers.

Emeryville

Covered employers

Employers with nonexempt full-time, part-time, on-call, contract, and seasonal employees that are in:

Retail with 56 or more employees globally
Fast food with 56 or more employees globally or 20 or more employees in Emeryville

This includes franchisees associated with a franchisor or a network of franchisees with more than 12 locations globally.

Employers located outside the city but employ workers performing work in Emeryville are also covered.

Advance notice requirements

14 days in advance
Good faith estimate to new employees
Employees can decline unscheduled hours given less than the notice.

Predictability pay

If a schedule change is made between 1 and 14 days before the shift, employees receive 1 hour of pay for any affected shift.
For cancellations or reduced hours with less than 24 hours notice, employees get the lesser of 4 hours of pay or the originally scheduled hours.
Any other changes made within 24 hours will give employees 1 hour of pay.

Rest hours and Rest hours and clopening

Employers must pay time and half pay for any hours worked for shifts that are less than 11 hours apart.

Exceptions

Predictability pay does not apply to employee-initiated shift swaps or for grace periods of 10 minutes or less before and after a shift. The same goes for an employee who works past the schedule to finish a transaction.

Access to hours for existing employees

Employers must offer additional hours to existing qualified part-time employees until they reach 35 hours of work in a calendar week.

San Francisco

Covered employers

Formula Retail establishments with at least 40 stores worldwide and 30 or more employees in San Francisco, including janitorial and security contractors.

Advance notice requirements

2 weeks in advance
Good faith estimate to new hires

Predictability pay

1 to 4 hours of pay for schedule changes made with less than 7 days’ notice
2 to 4 hours of pay if an employee is on-call but not called in to work

Exceptions

Predictability pay is not applicable when:

There is a threat to the safety of employees’ and employers’ property, public utility failure, Acts of God, or causes outside the employer’s control.
An employee scheduled to work cannot come in and did not provide at least 7 days’ notice.
An employee failed to report to work or was sent home.
An employer requires the employee to work overtime.
An employee swaps shifts with a co-worker or asks for a shift change.

Access to hours for existing employees

Employers must first offer additional work to existing part-time employees as determined by the employer or if the part-timer has done similar work.

Los Angeles

Covered employers

Retail businesses with 300+ employees globally

Advance schedule notice period

14 days notice
Good faith estimate for new employees
Employees reserve the right to decline hours, shifts, and work locations made after the advance notice period.

Predictability pay

1 hour at the regular rate for any increase in hours over 15 minutes
1 hour at the regular rate for changes in the date, time, or location without changing the hours
Half the regular rate for a reduction in hours by 15 minutes or more
Half the regular rate for on-call hours when the employee isn’t called to work

Rest hours and Rest hours and clopening

Employees must not work a shift that starts less than 10 hours from the previous shift. Otherwise, employees must provide written consent, and time and a half pay applies for shifts following an insufficient rest period.

Exceptions

Predictability pay does not apply if:

An employee initiated the schedule change.
An employee agrees to cover an absent employee’s shift, provided the employer informs them that it’s voluntary and they can decline.
The employee’s hours are reduced due to a violation of law or company policy.
The employee accepts additional hours offered under section 185.05.
The employer’s operations are affected by legal issues or force majeure.

Access to hours for existing employees

Employers must offer work to current employees at least 72 hours before hiring a new employee or using a contractor, temporary service, or staffing agency to perform work.

Illinois

Chicago

Covered employers

Employers that have at least 100 employees globally in the building services, healthcare, hotels, manufacturing, and warehouse services industries
Restaurant businesses with 250 employees and 30 locations
Employers with employees earning less or equal to $31.85 per hour or less than or equal to $61,149.35 in a year

Advance notice requirements

14 days’ notice
Written estimate of work hours for new employees

Predictability pay

1 hour of pay for every affected shift if the employer subtracts, adds, and changes shifts with no loss of hours after the 14-day notice period
1 hour of additional pay for every affected shift when an employer adds hours or changes shifts with no loss of hours less than 24 hours before a shift
50% of pay for lost hours when the employer subtracts hours less than 24 hours before a shift starts

Rest hours and clopening

Employees can decline shifts that start less than 10 hours after their last shift. If they work a shift within that time, they must be paid 1.25 times their regular rate.

Exceptions

Predictability is not applicable in cases of:

Threats to employers, employees, property, or when authorities advise against work.
Utility failures (electricity, water, gas, or sewer issues) at the workplace.
Natural disasters like floods, earthquakes, tornadoes, or blizzards.
War, civil unrest, strikes, safety threats, or pandemics.
Shift trades or coverage agreed upon by employees.
Schedule changes mutually agreed upon by employee and employer, confirmed in writing.
Schedule changes requested by the employee, confirmed in writing.
Reduction in hours for documented disciplinary reasons.

Access to hours for existing employees

Employers must first offer extra shifts to qualified employees. If no employees accept, the shifts can be offered to temporary or seasonal workers who have been with the employer for at least two weeks.

Evanston

Covered employers

Employers with:

100 or more employees globally, franchises included, in the hospitality, retail, warehouse services, manufacturing, and building services industries
At least 30 locations globally and 300 employees in the food service and restaurant industry

Advance notice requirements

14 days notice
Good faith estimate for new employees

Predictability pay

1 hour of predictability pay if employers add hours or change the date/time of a shift after the 14-day notice period, with no loss of hours.
1 hour of predictability pay if employers reduce hours from a regular or on-call shift with more than 24 hours notice.
If less than 24 hours notice is given, employees may receive up to 4 hours of predictability pay, depending on the number of hours affected.
For on-call employees not called in, the employer must pay half of the missed hours or 4 hours, whichever is less, if the employee isn’t being paid their regular rate.

Rest hours and clopening

Employees must be paid 1.5 times their regular rate for any hours worked less than 11 hours after their last shift. They must provide written consent to work within this 11-hour window.

Access to hours for existing employees

Employers must offer extra shifts to qualified employees first. If no employees take the shifts, they can be offered to temporary or seasonal workers who have been with the employer for at least two weeks.

New York

New York City

Fair Workweek rules in New York City apply to two work sectors — fast food and retail industries.

Covered employers

Fast food establishments that are part of a chain and are one of 30 or more establishments nationally.
Retail employers that operate one or more retail establishments in New York City

Advance notice requirements

Fast food businesses must give regular schedules that stay the same week-to-week and must give schedules 14 days in advance.
Retail employers must give 72 hours’ advance notice of work schedules. Shift additions and cancellations are prohibited with less than 71 hours’ notice, and there must be no on-call shifts.
Workers can accept or decline additional work time.

Predictability pay

Fast food employers must pay $10 to $75 for every change made to a shift after the notice period for
Retail employers must pay $300, as well as damages, to the affected workers. A fine of $500 can also be imposed. It could be more if the employer violated the law before.

Rest hours and clopening

Fast food employers are not required to pay premiums for schedule changes due to:

Threats to employees’ or employers’ property
Public utility failure or public transport shutdown
Natural disasters such as fire or flood
Federal, state, or local state of emergency
Severe weather conditions that can compromise employee safety
Employee-initiated changes such as time off requests, using sick leaves, arriving late, or needing to leave early (must be adequately documented)

More about New York City’s Fair Workweek Laws for Fast Food and Retail Businesses

Pennsylvania

Philadelphia

Covered employers

Employers with more than 250 employees worldwide and 30 or more locations worldwide, including chains and franchises in the service, retail, and hospitality industries.

Advance notice requirements

14 days’ notice
Good faith estimate upon hiring an employee
Employees may decline additional work hours not posted in the schedule after the notice period.

Predictability pay

1 hour of regular rate of pay when the employer adds time to a scheduled shift. The same applies when changes are made to the date, time, or location with no loss of hours.
Half of the regular rate of pay for any scheduled hours the employee does not work due to reduced hours from a regular or on-call shift. The same applies when an on-call shift is canceled.

Rest hours and clopening

There should be a rest period of at least 9 hours between shifts. Otherwise, an employee must consent in writing. Employers must also pay $40 for each clopening shift.

Access to hours for existing employees

Before hiring new employees or using subcontractors or staffing agencies, the employer must first offer available shifts to existing employees.

Washington

Seattle

Covered Employers

Retail and food service establishments with at least 500 employees worldwide
Full-service restaurants that have at least 40 full-service locations worldwide

Advance notice requirements

14 days advance notice
Good faith estimate for new employees
Employees can decline hours not in the originally posted schedules

Predictability pay

1 hour of pay for hours added to a shift or when the date or time is changed
Half of the hours not worked when an employee is sent home early
Half of the hours not worked when an employee is scheduled for on-call work but is not called in

Rest hours and clopening

There must be 10 hours of rest in between shifts. Employees are entitled to time and a half pay for clopening hours that are less than 10 hours apart.

Exceptions

Predictability pay is not applicable when:

The employee asked for the changes in schedule or traded shifts with a co-worker.
The employee responded to a message about available hours because another employee couldn’t work.
The employee replied to a message about hours available due to unexpected customer needs.
The reduction in hours was due to discipline.
The change was due to threats, public official recommendations, utility failures, natural disasters, or legal issues.

Access to hours for existing employees

The employer must offer extra hours to current employees before hiring external candidates, subcontractors, or temporary workers. Employers must post a notice of available hours for three days. Employees have two days to decide if they want the extra hours before the employer hires outside help.

Compliance Tips for Fair Workweek Ordinances

Implementing predictive scheduling laws into your operations can be complicated – it’s easy to overlook crucial details if your policies aren’t thorough. Here are some practical tips to help your business remain on the right side of the law.

Stay abreast of ordinances in your place of business

Only a handful of cities have an ordinance for predictive scheduling, but this could change in the future. It’s best to stay informed about any updates or new regulations in your area.

Keeping up with changes is crucial if you’re in a city or state that has existing Fair Workweek laws. For example, New York City previously required fast food employers to provide a good faith estimate of work hours to new hires, but this was replaced with a mandate for regular week-to-week schedules.

Check with local and state governments regularly for updates on employment laws and scheduling practices to ensure your business remains compliant.

Invest in predictive scheduling software

Predictive scheduling laws are just one of the many employment regulations that businesses must comply with. Many businesses invest in scheduling and payroll solutions that help mitigate predictive scheduling headaches. Software like this automates key areas like shift notifications and predictability pay, ensuring that you meet Fair Workweek standards.

Workforce.com, a scheduling and payroll platform designed for hourly workforces, specializes in predictive scheduling and Fair Workweek compliance. Here’s how it can help:

Shift scheduling and labor forecasting – Avoid over or understaffing with demand-based schedules. Workforce.com can use data that indicates possible demand, such as historical sales, foot traffic, booked appointments, and even weather information, so you can schedule the correct number of staff for each shift well in advance.
Alerts and announcements—A critical part of Fair Workweek ordinances is ensuring employees are notified of posted schedules in time. Workforce.com makes this easy—once a schedule is published, employees are notified through the app, and you can also print the schedule. A robust communications feature lets you send announcements about schedule updates and live chat with staff and managers to maximize transparency and efficiency.
Pay rules – Assign pay rules to each employee, including those predictability pay they may be entitled to when certain conditions get triggered. Once set up, these rules are automatically applied during payroll, eliminating the need for manual entries and calculations.
Employee tags and classification – Assign tags to covered employees of predictive scheduling rules to ensure they receive the correct pay when predictability pay conditions are met. You’ll also receive automatic alerts when scheduling an employee at risk of working a clopening shift.
Shift swapping – Workforce.com has shift-swapping functionality that allows qualified staff to take up vacant shifts. This helps automate the process and provides a simple way to track and record shift changes.
Payroll – Another crucial part of complying with predictive scheduling laws is ensuring covered employees are paid what they’re owed, including applicable predictability pay. Workforce.com automatically computes wages, overtime, deductions, and predictability pay premiums based on timesheets and hours worked by your employees.
Recordkeeping – Employers are required to maintain records of schedules and documentation related to Fair Workweek compliance. Workforce.com centralizes this information, making it easily accessible. In the event of an audit or when you need to retrieve these records, everything is organized and readily available.

Train managers and HR teams

Managers and human resources are at the frontline of implementing predictive scheduling laws. Train them to understand the specifics of these ordinances and how to communicate them to staff. As a crucial part of compliance, they must have the training and resources to ensure company policies align with and adhere to applicable labor laws.

Why fair scheduling practices matter

Fair scheduling practices are essential to any hourly workforce, regardless of whether predictive scheduling laws exist in your area. Equitable workplace policies should not just stem from the need to comply – they should begin with the desire to equip and support your employees.

A consistent and transparent scheduling system minimizes scheduling conflicts, reduces absenteeism, improves retention, and provides flexibility for hourly staff. This should be standard practice, whether mandated by law or not. Discover how Workforce.com helps you implement best practices with employee scheduling, payroll, and HR for hourly workforces. Book a demo today.

May 18, 2021June 29, 2023

Predictive scheduling laws: What they cover and how to comply

Over the past five years, the United States has seen a wave of new predictive scheduling laws aimed at providing employees with more predictable work schedules.

These predictive scheduling laws are designed to provide stability to individuals so that they can attend to their child care, health, education and, in many cases, second jobs. Early predictive scheduling laws only applied to retail establishments and restaurants, with limited penalties and no private right of action (i.e. employees could not sue for violations of the law).

However, more recent predictive scheduling laws cover a much broader array of industries, with far more draconian penalties, and allow for employee-initiated class action litigation. While these laws are well intentioned, they do present significant challenges for employers in terms of staffing, costs, document retention and general compliance.

This is because the legislation is relatively new and varies by city. Moreover, these laws often require dramatic departures from historical hiring and scheduling practices. The result is a patchwork of new laws, with limited guiding precedent and substantial penalties for noncompliance. As an employer, you would do well to heed these laws and take appropriate steps to ensure you are compliant.

Where have predictive scheduling laws been passed?

Many jurisdictions have considered, or are considering, passing predictive scheduling laws. So far, two states — Vermont and Oregon — and eight municipalities — San Francisco, Berkeley, Emeryville, San Jose, Seattle, New York, Chicago and Philadelphia — have passed laws. The laws in these jurisdictions are similar but different enough to discourage larger employers from creating company-wide policies and procedures for national compliance. Looking at 2021 and beyond, that list is likely to grow. Connecticut, Illinois, Maine, Michigan, Minnesota, New Jersey, North Carolina and Rhode Island all have predictive scheduling laws or equivalents under consideration.

Though most laws require employers to pay their employees predictability pay when their schedules are changed without advance notice, many laws contain different requirements regarding the amount of predictability pay owed, as well as exceptions to predictability pay entitlement. Accordingly, the differences in predictive scheduling laws not only require different scheduling policies, they require tailored and distinct payroll practices as well. Failure to properly pay employees under predictability pay rules can create federal and state wage and hour exposure as well.

It is also worth noting that some states have gone in the opposite direction, prohibiting the use of predictive scheduling legislation. Since 2017 Tennessee, Georgia, Iowa and Arkansas have all made it illegal for local government to require employers to adopt scheduling or hiring practices other than those already required by federal law.

What do predictive scheduling laws require?

While predictive scheduling laws from many of the jurisdictions contain several nuanced differences, there are general requirements that are common to many of them.

Advance notice of work schedule, generally at least 14 days.
A written estimate of each employee’s anticipated work schedule (at the time of hire).
Predictability pay in the absence of sufficient advance notice of work schedule.
Exceptions to eligibility for predictability pay.
A right to rest requirement to prevent “clopening” (i.e. no employee should be required to close up at night and open up the next day), as well as amplified pay for close-in-time work shifts.
Offers of additional hours to current part-time employees before hiring a new employee.
Posting requirements.
Stringent documentation and document retention requirements. This generally includes work schedules, written scheduling estimates, documents evidencing predictability pay, and documents related to offers of additional hours.

Though not common, some jurisdictions, such as Seattle and Philadelphia, encouraged employers to engage in an “interactive process” with employees who request a modification to their work schedules. Notably, this idea of an “interactive scheduling process” is one that has endured and presents additional managerial burdens for employers.

How to comply with predictive scheduling law

Determine applicability. Employers operating in a jurisdiction with a predictive scheduling law in place should first determine whether they qualify as a “covered employer” under the applicable law. While many laws only apply to certain employers in the restaurant and retail industries, other laws have a more expansive definition of “covered employer.”
Create policies and forms. Once an employer determines that it is covered, it should develop policies and forms tailored to each applicable law. Sample forms that would be helpful to have on hand include, but are not limited to: a notice of change in work schedule, a notice of offer of additional hours, an estimate of work schedule and hours, and a template work schedule. Additionally, employers should consider maintaining working checklists that managers can use to ensure compliance.
Train managers. Once the policies and forms are prepared, employers should train their managers on the applicable laws, as they will largely be responsible for facilitating and documenting compliance.
Ensure proper data maintenance. Because compliance with predictive scheduling laws requires retention of a high volume of documents, employers should ensure they have proper mechanisms in place for storing documents and data.
Audit for compliance. In order to ensure compliance with any applicable predictive scheduling laws, employers should periodically conduct internal audits to ensure policies are being followed and documents retained.
Use technology to predict staffing needs. In order to avoid predictability pay, employers may want to use technology and data analytics provided by software such as Workforce.com to anticipate future staffing needs. Setting schedules based on reliable data may decrease the need for unanticipated scheduling changes and thus reduce the likelihood of predictability pay.

Predict staffing requirements — Workforce can track your wage costs against your income over time and automatically recommend
the best staff schedules based on predicted demand.

Predictive scheduling compliance doesn’t need to be a problem

If you run a business that is affected by predictive scheduling laws, or think that it may become a reality in your state soon, then it’s easy to look at these new requirements and only see the additional administrative burden. There are benefits to businesses, however.

Academic research has shown that employees with stable, predictable schedules are happier, healthier and more likely to stay with their employer for the long term. You can also mitigate many of the requirements of predictive scheduling by using labor compliance software from Workforce.com to manage your employees. Not only does it handle the collection and auditing of shift data, it can keep track of relevant labor legislation and automatically warn you if any of your workers’ shifts are in breach of the law wherever you operate. So don’t be afraid of predictive scheduling. It’s easier to comply with than you think, and can make your business run more smoothly.

November 13, 2020June 7, 2022

The fair workweek squeeze on employer scheduling

Employers are experiencing an intrusion of regulations and disruption around how they operate. Fair workweek laws have sprouted up across the country in numerous large cities including New York, Philadelphia and Chicago, and statewide in Oregon and New Hampshire. The recent wave of new rules affects scheduling for hourly workers in retail, hospitality and other sectors.

Many aspects of business are constrained by important rules to maintain safety, free trade, environmental standards, equity, and transparency in the marketplace. Fair workweek, or FWW, scheduling laws present a challenge that goes beyond rates of pay and fines, though. Such scheduling laws are disruptive in the way the rules restrict how employers operate and schedule work.

The intent of fair workweek laws may be to strike a balance between two interests (employer and employee) regarding the schedules people work and when they are asked to work them in order to deliver predictable and stable schedules. But despite the intent of balance, the reality is that FWW laws permeate deeply into the employer operations, dictating specifics about how the employer organizes and manages shift work in their business.

If an employer is not equipped to manage FWW, they can face higher operating costs and fines. These regulations put a significant burden of change and cost onto employers while providing a meaningful upside for workers. With added responsibility, it’s important for employers to understand these laws and their implications in the field.

The employer is not simply one side of this balancing equation. They are caught in the middle between regulators and employees, which requires more delicate navigation. In addition, natural forces of the marketplace such as the weather, the economy, landlords and competitors, major events, and unexpected events such as the COVID-19 pandemic ensure an environment of constantly moving parts for employers to navigate.

Fair workweek disruptors for employers and employees

For employers, these disruptors are very real, unpredictable and largely out of their control. To stay afloat, employers need to control how they react and how they operate.

A successful business is agile and smart. It faces the impacts to its business and makes changes to adjust various operating aspects, including schedules. Often these changes must happen quickly and without notice.

Not every schedule change is huge. It could mean changing operating hours for a day or two each week or needing more workers one evening. A more significant change could encompass pivoting to drive-up service, staggering shift start times or transitioning more workers to part time.

Also read: Ethics and the future of workforce management

The constant for employers is change and uncertainty. The FWW constant is that the rules apply to situations regardless of the degree of schedule change.

Workers face real and unpredictable forces as well. The weather, car trouble, a sick family member, the demands of school or a spouse’s job can change how they operate.

Having unpredictable schedules and variable hours week to week can put a disruptive strain on the personal lives of employees putting them in the middle of their job and their personal demands. So why are we here?

The origins of fair workweek

The FWW movement was born out of concern for the employee side of the shift work equation. Voices grew loud about how the schedule volatility burden was being put onto workers. From the worker’s perspective, employers over-tilted on solving for the impact outside forces have on their business. Workers were living through highly optimized schedules that entailed last-minute shift changes, minimal advance notice of schedule assignments and awful “clopening” shifts.

Employers weren’t intending to rely on haphazard work schedules to keep their business running. They didn’t look closely enough at the human side of scheduling to understand the impact these schedules were having on their people.

Managers weren’t using a methodology for scheduling that produced high quality schedules for workers. Because employers didn’t quantify the impact of schedules on worker experience and the cost to their business, they missed realizing that focusing only on business issues wasn’t good for their overall employee health and system of operating. Employees wanted a move away from this business-centric approach to a more worker-centered model.

Regulators certainly couldn’t remove the volatility in the marketplace that causes employers to change schedules. And they couldn’t eliminate the personal situations employees face that necessitate needing predictable, stable schedules. But the regulators could, through FWW laws, remove the volatility that employees experience around schedules.

Searching for a new scheduling model

In comes the squeeze. FWW has put employers in the middle of marketplace VUCA (volatility, uncertainty, complexity, and ambiguity) and workers. Employers are in a real pinch – the laws prescribe how employers must act and react. The economic laws of nature also mandate terms and conditions. To even out the strain of uncontrollable external volatility and uncertainty on the one side and rigid internal employee-focused scheduling rules on the other, employers have to operate differently.

The way forward is to “operate differently” not just simply “schedule differently.” FWW rules circumscribe more than just assigning and changing schedules. FWW rules apply to several business functions before and after a schedule.

FWW rules must be part of hiring and reporting, scheduling and compensating, training and operational performance. The rules are different in each jurisdiction and more localities and states will add new laws. Managing the complexity and ambiguity is a challenge.

Operationally, FWW will change how employers forecast labor demand, how they convert demand into shift schedules, how they assign employees to shifts, how they react to real-time disruptions or changes in their business, how they plan for the cost of labor, the scheduling and payroll systems they use, who and how they hire, and how their company survives and thrives.

For employers looking to navigate these new regulations, there are important steps to take:

Recognize that FWW is much more intrusive than a minimum wage increase or paying a premium. FWW compliance will change how you run your business.
Incorporate FWW into your financial planning. Prepare for a 3- to 9 percent increase in labor costs to account for additional wage premiums paid to workers.
Assess your readiness to align to the FWW rules. Be certain of what you need to do. Use an independent third party to assess how fair workweek processes are handled and to identify gaps in processes, technology, and training.
Assign a fair workweek owner who is responsible for FWW transformation and sustainment. Task this person with documenting the risk profile for the organization and creating a plan for training, controls and system changes.
Define what good FWW alignment and compliance look like for your business and your people. Set goals for compliance and develop plans to achieve them such as updating procedures, incorporating incentives, adding new KPIs, etc.
Assess your technology platforms (payroll, HR systems, and employee scheduling software) and determine their ability to handle the required processes, payments, scheduling checks and document retention required.

The objectives of the fair workweek are well-intentioned, but the realities can be adverse for businesses. It will take time, investment, and adjustments for employers to rebalance the scales of FWW.

The pressures of FWW mandates coupled with the extreme conditions of the marketplace today put a spotlight on labor scheduling. Fair workweek requires adjustments to processes, systems and how people are scheduled. Getting the changes right will lead to improvements in employee satisfaction and managed increases in labor cost.

June 12, 2020June 29, 2023

Employee scheduling after the COVID-19 pandemic

Employee scheduling was getting a facelift even before COVID-19, and in the aftermath of the pandemic, employers have even more to think about when it comes to scheduling employees.

The 2010s brought a number of state or local predictive scheduling laws into effect, giving employees much needed stability but complicating the scheduling process for managers. Meanwhile, the COVID-19 pandemic highlighted the lack of sick or paid leave for many hourly workers and the struggles employers go through when employees can’t come to work fo COVID-19-related reasons.

David Kopsch, principal consultant at Mercer, explained the major employee scheduling issues employers are encountering and ways to address those challenges.

Also read: Leave management should be as simple as submit, approve and hit the beach

Predictive scheduling laws across the United States

In a nutshell, these predictive scheduling laws require employers to notify employees in advance of what their schedules will be. Some cities require as low as 72 hours notice while others require as high as two weeks.

The goal is to reduce uncertainty in employees’ schedules so that they can plan for responsibilities like child care, school or other jobs.

Also read: How far in advance must a work schedule be posted?

The most frequently discussed part of these laws is the advance notice on schedule, Kopsch said, but they also contain many other provisions, like recordkeeping requirements and providing compensation for schedule changes.

Something else significant in these laws are rules that let employees have a certain amount of time off between the end of the last shift and the beginning of the next one, Kopsch said. For example, if an employee closes shop around 10 p.m., the same employee is not opening the site at 6 a.m. There are safety reasons for this, but these rules also exist to ensure that employees get enough sleep or rest between shifts.

While making the lives of employees easier, these laws have also added another layer of complexity for managers who must create schedules.

COVID-19 complications to employee scheduling

With the pandemic, hourly employees are facing a variety of situations in which they may not be able to come into work. They may be sick or suspect that they may have the coronavirus. They may face child care lapses due to school closures or other circumstances.

This can hurt employees’ wages and has the potential to impact their eligibility for bonuses, overtime or benefits, Kopsch said. Employers also face extra pressure when employees don’t come into work.

Some employers may need to adjust their staffing models due to COVID-19, Kopsch said. As businesses start reopening, one reality is that they may have to spend more time in the mornings cleaning and sanitizing the location. Perhaps the business will have to be open less hours during the day and run on a reduced schedule, which also has the impact of a reduced workforce or giving employees less hours.

Also read: Shift scheduling strategies can be improved through technology

Communication with payroll providers

Managers must ensure they are communicating with their payroll provider through this all.

“In these times of reduced schedules, there’s more interaction with payroll providers and technology to update the systems and adjust for the changes in how the workforce is working and coming to work,” Kopsch said.

For example, he noted a tactic some retailers are using in which they’re paying hourly workers slightly higher wages or offering some type of bonus to motivate and retain employees.

“If you introduce a new pay element, that’s one more item that you have to ensure [that you’re being] compliant. And that goes back to working with a payroll provider,” he said.

Also read: Shift schedule templates are a basic food group to workforce management

Communication with employees

Managers can also take on certain best practices to keep employees engaged and in the loop. Clearly communicating open and closing times is important. Also, make sure to be clear when employees should arrive for their shift. There may be extra precautions to take before their shift starts, like sanitizing or training.

Reopening a business after the pandemic is complicated, and clear communication can help simplify it.

Technology can also simplify the communication between employers and employees.

“We’re seeing technology as something being reviewed more and more by employers as a way to support employees as well as a way to communicate with them and help them understand what is available in terms of what schedules are available and getting and receiving communication.,” Kopsch said.

June 10, 2020April 11, 2023

How far in advance must a work schedule be posted?

Predictive scheduling laws have changed the way many businesses make their schedules. While there are many details in these rules — like record keeping requirements and providing compensation for schedule changes — what people most talk about is employers’ responsibility to provide employee schedules in advance.

Also read: Shift swap software empowers managers and employees to take charge of scheduling

The purpose of these laws is to give employees more predictability and stability, providing them a chance to plan ahead. If they know their work hours in advance, they will more likely be able to plan for a second job, child care or other responsibilities that must be planned in advance.

Still, these laws mean that businesses must stay compliant with new regulations, and for employers with multiple locations across the country, they may have different rules to comply with. Following is some of the basic information about each of these laws.

Also read: Employers grapple with laws about work schedules

How far in advance must a work schedule be posted?

The timing varies. Currently, there are several laws in cities across the United States. Four cities in California have predictive scheduling laws: San Francisco, Emeryville, San Jose and Berkeley. Other cities and municipalities include New York, Seattle, SeaTac and Philadelphia. Chicago joins these July 1, 2020.

Meanwhile, Oregon is the only state with such a law in effect, while New Hampshire and Vermont have more limited scheduling-related laws.

These laws have specific stipulations for which businesses must comply to the rules, and they also have many other details employers must be familiar with. However, looking at this from a more basic point of view, here is how much notice employers whom the laws apply to must give employees in each location:

San Francisco: 14 days notice; went into effect March 1, 2016.
Emeryville: 14 days notice; went into effect July 1, 2017.
San Jose: No advance notice component, but employers must offer additional hours to existing, qualified part-time employees before hiring more employees; went into effect March 13, 2017.
Berkeley: No advance notice component, but employees may request flexible or predictable working arrangements twice per year and after a major life event.
New York: 14 days notice; went into effect Nov. 26, 2017.
Seattle: 14 days notice; went into effect July 1, 2017.
SeaTac: No advance notice required, but employers must offer additional hours to existing, qualified part-time employees before hiring more employees covers only large hospitality employers and transportation employers.
Philadelphia: 10 days notice; went into effect April 1, 2020.
Chicago: 10 days notice; goes into effect July 1, 2020.
Oregon: 14 days notice; went into effect August 8, 2017.

Complying with predictive scheduling laws

How far in advance must a work schedule be posted? These regulations provide clear numbers on the minimum employers must do, but that doesn’t mean they can’t go above and beyond that.

Employees are beginning to return to work after months of quarantine. The conversation around predictive scheduling will have to evolve because of the coronavirus, said Ari Hersher, partner at Seyfarth law firm. Employers can begin improving on the communication they have with employees.

“Employers should do what they can to communicate as far in advance about their anticipated schedule as possible,” he said, adding that the clients he works with that are subject to predictive scheduling laws give up to 21 days notice on schedules.

Managers can communicate scheduling in advance and explain the flexibility needs of the business at the same time, creating an open line of communication between employer and employee.

“Employers can say, ‘We’ll give you 30 days notice, but please understand that our scheduling needs are volatile,’ ” he said. “People should [try to] understand each others’ needs and be mindful of them.”

David Kopsch, principal consultant at Mercer, agreed that giving more notice will benefit employers right now. The return-to-work environment is stressful. Employers must create employee work schedules without knowing what sort of customer demand to expect, and some employees may be fearful to return to work in a customer-facing job.

Organizations can provide schedules to employees up to four weeks in advance, Kopsch said. From there, they can call and confirm with employees three weeks in advance, make whatever changes are necessary and officially post the schedule two weeks ahead of time, which would allow employers to comply with any of the predictable schedule laws.

“We are seeing much more communication coming from employers, and what [employers] are sharing with us is employees like it,” Kopsch said. “They like this high level of communication. They like the engagement and the concern and empathy that employers are demonstrating,”

June 2, 2020June 29, 2023

Employers grapple with laws about work schedules

Chicago’s fair workweek law goes into effect on July 1, 2020.

Chicago joins the ranks of other cities like San Francisco, Emeryville, San Jose, Berkeley, New York City, Seattle, SeaTac and Philadelphia that have predictive scheduling laws. Oregon, meanwhile, is the only state with one of these laws in effect, while New Hampshire and Vermont have more limited scheduling-related laws.

The past few years has seen a wave of predictive scheduling laws, making it a hot topic in industries like retail and hospitality, said Ari Hersher, partner at Seyfarth law firm. Hersher described predictive scheduling as “the next big thing” — much like a wave of paid sick leave laws that began surging in the late 2010s and created a patchwork of local and state laws across the United States. COVID-19 has only increased this trend of paid sick leave laws.

Also read: Shift scheduling strategies can be improved through technology

The COVID-19 pandemic has had a few notable impacts on fair workweek laws in 2020, he added. Industries like retail, food service and hospitality that have been greatly impacted by the pandemic are also the industries primarily impacted by predictive scheduling laws. While COVID-19 has not stopped cities and states from enacting the laws currently in place, it’s uncertain if new laws will continue with the same momentum as they did pre-pandemic.

“It remains to be seen what will happen post-COVID. I think there will be an interesting push and pull,” Hersher said. “There will be a strong desire to not overly restrict these businesses like retail that have been so devastated by the coronavirus, but also [give] all these employees — who may have kids out of school or need to work multiple jobs in order to manage — the scheduling stability and notice that they can manage their lives.”

COVID-19 aside, these laws already exist in several municipalities. Hersher went over these laws about work schedules and how employers can work with them.

Also read: How to reduce compliance risk

The meat of these laws

Laws vary by city or state, but they generally include four common provisions, according to the National Retail Federation. These provisions are:

Advanced posting of schedules.
Employer penalties for unexpected schedule changes.
Record-keeping requirements for employers.
Prohibitions on requiring employees to find replacements for scheduled shifts if they are unable to work.

Predictive scheduling laws are meant to address common concerns hourly employees have, including unpredictable, unstable and often insufficient work hours. As a 2018 Economic Policy Institute article explained, “Employers in some industries have increasingly adopted scheduling practices that leave workers in desperate need of additional work yet hampered in their ability to actually seek supplemental work elsewhere or find a new job altogether.”

Certain scheduling practices that some employers adopt “shift more of the risk and costs of doing business from firms onto their employees,” the article continued. For example, they may require employees to maintain “open availability” for all hours the store is open, giving them basically no input in the days or times they work.

Also read: Leave management should be as simple as submit, approve and hit the beach

Impact on employers

These laws put a strain on employers, for whom most scheduling changes aren’t intended, Hersher said. Employees may call in a few days or hours before their shift starts, leaving employers little time to find a replacement. They need flexibility to create good schedules.

Also read: Predictive Scheduling Laws — What Are They, Where Do They Exist and Employers’ Reaction

The financial penalties for breaking predictive scheduling laws are substantial for employers, he added.

In addition, some employers may have to comply with multiple predictive scheduling laws, depending on what states or cities they operate in. Complying with this patchwork of laws is complicated and requires different workplace policies for different locations.

The Society for Human Resource Management suggests that employers should audit their locations. “A centralized staffing model can quickly become outdated, or even worse, a liability. Location-specific policy changes may need to be made, and managers may require retraining on how to handle staffing shortages.”

Also read: 3 Steps to Navigating Effective Wage and Hour Compliance

Potential solutions

Using predictive analytics to create schedules weeks in advance is one solution to avoid overstaffing and understaffing, Hersher said. Certain technology solutions may help, too, if they can help employers take different regions’ predictive scheduling laws into account as they create schedules.

Communication is also key. Some newer predictive scheduling laws include the “suggested interactive process,” he said. This is optional but encourages employers to have a dialogue with new employees. Usually, when someone begins an hourly job, their manager tells them what their days and hours will be. With the interactive process, the new employee can have their say in the conversation. “I have another job or other responsibilities these days and times, but what about this schedule instead?”

The employer has the ultimate decision over the employee’s schedule, Hersher said, but having that conversation can help employees feel respected and heard.

Laws about work schedules during the COVID-19 pandemic

Fair workweek laws are still in place and being enforced in the midst of COVID-19, Hersher said. For example, in San Francisco the Office of Labor Standards Enforcement is continuing to pursue complaints, file investigations and move forward with these laws like before. On a city-to-city basis, there are realistically different enforcement levels, he said, but it’s important to remember that municipalities or agencies don’t need to pause their enforcement work in light of store closures.

“Retail is already facing a lot of challenges. And whether the government wants to put a lot more financial burden on their existence is something they’ll really have to consider,” Hersher said. “It’s a delicate balance to come up with a law that doesn’t force shops to close but is also protective to employees.”

Hersher believes the conversation around predictive scheduling will have to evolve because of coronavirus.

While predictive analytics generally can help businesses with employee scheduling, it will be much more difficult to predict scheduling needs for the next year and half or so because of the pandemic, he said. Historical data from previous years may not be applicable in post-pandemic times, and businesses don’t know to what degree people will return to restaurants and stores.

He suggested that employers do what they can to create schedules far in advance and focus on honest conversations with employees.

Employers can also communicate to all their employees and explicitly ask who would want additional hours if they become available and what other days and times they could work. Taking a proactive measure like this can help both sides in helping employees get more hours and helping employers get the people they need.