A Wave of Fair Workweek Laws Expands Coast to Coast: Are You in Compliance?

Fair Workweek laws, otherwise referred to as predictive scheduling laws, are on the rise across the United States. At this time, Oregon has enacted a statewide Fair Workweek law, while several jurisdictions, including Chicago, New York City, Philadelphia, Seattle, Los Angeles, and other California cities, have also enacted or introduced similar local legislation.

Fair Workweek laws require covered employers to provide employees with predictable work schedules. The underlying purpose of Fair Workweek laws is to provide employees in industries where irregular schedules are common with more consistency and notice with respect to scheduling. These laws typically impact employers in the retail and food industries given the varied and, at times, unpredictable nature of employee scheduling and shift coverage.  

Providing advanced notice indeed presents challenges for employers. There are several employers who already experience difficulty with staffing and shift coverage. As such, requiring employers to provide advance notice of employee scheduling adds responsibility upon employers and, thus, calls for developing effective measures for compliance and familiarity with the legislation. The rise of Fair Workweek legislation has yielded a wave of lawsuits that may lead to class action litigation as a result of noncompliance. Therefore, employers must understand (1) whether they are covered, (2) where they must comply, and (3) the steps they need to take in order to avoid potential exposure and liability.

Status of Laws

Below is a snapshot of jurisdictions with current and upcoming Fair Workweek laws, their effective dates, and notice requirements:

In addition to the notice requirements, there are several nuances among the Fair Workweek laws, including posting requirements, requirements to make additional hours available to part-time employees before hiring new full-time employees, and requirements concerning cancellation of shifts. For further information regarding covered employers, other requirements, and nuances among the laws, please reach out to our authors.

Regional Scope: The Northeast

This Section highlights two major metropolitan localities in the Northeast: New York City and Philadelphia. The central components of the respective Fair Workweek laws are discussed below.

New York City

New York City’s “Fair Work Practices” law applies to certain employers in the fast food, retail, and private utility safety industries. Retail and utility safety employers must provide employees with a written work schedule at least 72 hours in advance of the first shift on a schedule. The law further indicates that retail and private utility safety employers cannot schedule employees for on-call shifts and cannot require employees to “check in” within 72 hours of a scheduled shift to ensure whether they should report to the respective shift. In addition, retail and private utility safety employers cannot cancel or shorten shifts by more than 15 minutes less than 72 hours before the start of the shift. An employer’s failure to give employees 72 hours’ notice of a work schedule may lead to fines of $300.00 per affected worker for a first violation and up to $500.00 per worker for subsequent violations. Further, should an employee voluntarily consent to work additional hours, the employer must receive the employee’s consent in writing. This requirement stems from an employee’s ability to decline additional work under the law. 

With respect to the fast-food industry, employers must give employees a regular schedule and 14 days’ advance notice of each weekly schedule. A regular schedule differs from a work schedule because it contains an employee’s recurring weekly shifts on a long-term basis. Employers cannot schedule back-to-back closing and opening shifts with less than 11 hours between the shifts without the employee’s permission and written consent. Under the law, employees may decline additional work or a reduction of work. Should an employee consent to a change, the employer must receive the employee’s consent in writing. Notably, employers may be subject to pay between $10 to $75 for each change to a scheduled shift that is made less than 14 days before the first day on the work schedule. Additionally, employers must offer newly available shifts to current employees prior to hiring new employees for the same shifts. Under the provisions related to employers in the fast-food industry, employees are entitled to decline working additional hours before the hours are added to the schedule.

Under each subset of the New York City law, employees must maintain records of compliance for a period of 3 years. Failure to maintain records for a period of 3 years may result in a rebuttable presumption against the employer in the event of a lawsuit which would shift the burden of proof to the employer to prove it did not violate the law.

Philadelphia

Philadelphia’s “Fair Workweek Employment Standards” law applies to certain employers in the retail, hospitality, and food services industries. This law requires employers to post written notice of the work schedule at least 14 days before the first day of any new workweek. With respect to the written notice, there are additional requirements. The notice can be provided electronically or via paper copy, must be stamped with the date and time of the posting, and must include at least each employee’s first initial and last name, including the employees who are not scheduled. 

The law further specifies that at the time an employee is hired, covered employers must provide a good faith estimate of the employee’s work schedule. The Department of Labor for the City of Philadelphia has defined a “good faith estimate” as “a written average of work hours or shifts an employee can expect to be scheduled to work each week.” The Philadelphia law also requires covered employers to revise the good faith estimate when there is a significant change to the employee’s work schedule due to alterations either in the employee’s availability or the employer’s business needs. If there is a change to an employee’s schedule, an employer may need to provide “Predictability Pay” for such alteration. The statute defines “Predictability Pay” as a “payment calculated by reference to the employee’s regular rate of pay . . . and paid to an employee as compensation for changes made by the employer to an employee’s Work Schedule, in addition to wages earned for work performed by that employee.”

Additionally, the law requires covered employers to offer newly available work hours to current employees prior to hiring new employees to cover those hours or provide a policy on offering and distributing new work hours. An employee is also entitled to decline any additional hours or shifts that are not included in the work schedule. Should an employee voluntarily consent to work additional hours, employers must receive the employee’s consent in writing.  Under this law, employers must maintain records of compliance for a period of 2 years. An employer’s failure to maintain records of compliance for a period of 2 years may lead to a presumption that an employer has violated the law absent clear and convincing evidence to the contrary.

What to do now?

Covered employers should become familiarized with all applicable Fair Workweek legislation. While the Fair Workweek laws speak to the same purpose, there are a number of nuances and specific requirements enumerated in each jurisdiction’s respective law. It is critical to train store managers and Human Resources personnel on the implications of these laws given these individuals typically handle scheduling and communication with employees on a daily basis. Multi-state employers should also examine these laws with a careful eye given the differing requirements in each locality.

For further information regarding covered employers and additional requirements, please reach out to our authors. Buchanan’s labor and employment team is closely monitoring Fair Workweek legislation nationwide and will continue to keep you informed.