Predictive Scheduling: Trend and Countertrend

by Dale Conder Jr.

Over two years ago, the San Francisco Board of Supervisors adopted a first-of-its-kind ordinance: San Francisco Retail Workers’ Bill of Rights. This ordinance applies to “‘formula retail establishments’ (or chain stores) with at least 40 formula retail establishments worldwide and 20 or more employees in San Francisco as well as their janitorial and security contractors.” (citing San Francisco Police Code Art. 33F, §3300F and Art. 33G, §3300G.) San Francisco requires covered employers to give new employees a written, good-faith estimate of the “employee’s expected minimum number of scheduled shifts per month and the days and hours of those shifts.” Id. (citing subsection 3300G.4(a)). And employers must give employees their schedules two weeks in advance, and if the schedule changes with less than seven-days’ notice to the employee, the employer must pay the employee for one to four hours of pay at the regular hourly rate. The number of hours depends on “the amount of notice and the length of the shift.” Id. What starts in San Francisco does not stay in San Francisco.

Seattle, Washington, Emeryville, California, and San Francisco have more in common than geography; Seattle and Emeryville adopted predictive-scheduling ordinances too. Like San Francisco, Seattle and Emeryville require that schedules be provided two weeks in advance. If there are changes within this two-week period, the employer must pay “predictability pay.” Seattle’s predictability pay is equal to one-half of the hours not worked and an extra hour of pay if extra hours are added to the schedule. Emeryville’s predictability pay depends on how much notice the employer gives to the employee. One striking difference between Emeryville and Seattle and San Francisco is that Emeryville’s ordinance applies to employers with 56 employees worldwide. Seattle and San Francisco have a much higher threshold for applicability.

Seattle’s and Emeryville’s ordinances also take aim at “clopening” by requiring at least ten hours (Seattle) and 11 hours (Emeryville) between work shifts. In other words, it is intended to stop the practice of requiring an employee who works a night shift from being required to work an early morning shift. (“Clopening” is a portmanteau word created by blending “closing” and “opening.”) Not to be outdone by west-coast cities, Washington, D.C. and New York City are working on similar laws.

The states have not been quiet about this issue. In 2016, legislation was pending in 16 states to enact similar laws on a statewide basis. And this year, the Oregon legislature is considering a bill that—if enacted—would require employers to pay up to four hours of unworked time if an employee’s shift is shortened or canceled. The proposal would require larger employers to engage in an interactive process to work out an employee’s scheduling concerns. This bill continues to work its way through the legislative process. Interestingly, a similar bill died in Oregon in 2015.

Proposals in California and Washington, D.C. also failed to pass, but there is a strong likelihood that these proposals will be resurrected.

The countertrend

Following attempts in Cleveland, Ohio, to enact similar laws, the Ohio legislature passed a law prohibiting local governments from enacting such laws. And this is developing into a counter-trend.

Nineteen states, including Tennessee, have laws that preempt local governments from passing minimum-wage laws. And several of these states have expanded their preemption laws to bar local governments from passing laws that address employment conditions and benefits. Although Tennessee is one of 14 states that have laws preempting local laws on employment conditions and benefits, it does not appear to reach far enough to preempt predictive-scheduling ordinances. It remains to be seen how the predictive-scheduling laws will fair in Tennessee.

These preemption statutes, however, are being challenged in court. In Alabama, the Service Employees International Union is providing support for a lawsuit challenging Alabama’s right to preempt the City of Birmingham’s efforts to pass a minimum-wage ordinance and other employment related ordinances. The lawsuit is based, in part, on equal-protection grounds. The plaintiffs allege that the preemption statute denies them equal protection because the state legislature that passed the statute is elected by a majority-white electorate and the City of Birmingham’s electorate is majority black. In February, the district judge dismissed the lawsuit, and the plaintiffs have filed an appeal with the Eleventh Circuit.

The problem with these laws is that one size does not fit all. For some employers, such laws might not be a big obstacle, but for others, especially smaller employers, this could be a real problem. Many object to these laws because they see them as too much government involvement in the employer-employee relationship. These laws are something for employers and their HR professionals to be on the lookout for.

Dale Conder, Jr., Attorney Rainey, Kizer, Bell &  Reviere PLC dconder

Dale Conder Jr., Attorney
Rainey, Kizer, Bell &
Reviere PLC