Workers’ rights groups have been pushing state and local governments to clamp down on employers who change worker schedules at the last minute, schedule multiple workers for peak times and send some home after the rush or practice short-notice call-in scheduling so that workers must be prepared to work at any time.
These practices, according to worker groups and some state attorneys general, interfere with child care arrangements, efforts to take part in educational programs and maintain second jobs.
The Law
The Fair Labor Standards Act (FLSA) is the centerpiece of federal wage-and-hour law. It dictates the minimum wage employers must pay and requires them to keep track of the hours employees work as part of its monitoring of overtime pay.
To date, the U.S. Department of Labor (DOL) has not interpreted it to require predictable scheduling. However, in a 2015 interview, David Weil, administrator of the DOL’s Wage and Hour Division, said it was an “open question” whether the FLSA required predictable scheduling.
Several states have more robust wage-and-hour laws that require employers to provide work schedules in advance or pay workers for on-call time.
What’s New
Recently, nine state attorneys general sent a joint letter to major retailers demanding information about their scheduling practices. This signals a new stage in the movement.
The letter went to retailers in New York, California, Connecticut, the District of Columbia, Illinois, Massachusetts, Maryland, Minnesota and Rhode Island. It demanded payroll records, sample schedules and information about computerized scheduling systems. It also asked retailers if they had considered alternative scheduling that would allow workers more work-life balance and predictability, including what internal studies they may have conducted about the efficiency and cost savings generated by their scheduling practices.
As California goes …
The California Senate’s Labor Committee has advanced a bill that would require grocery, retail and restaurant employers to give employees their schedules at least one week in advance.
Employers would have to pay “modification pay” for any unilateral changes that the employer later makes to the schedule. Changes made more than a day, but less than seven days, before the shift starts would require the employer to pay the affected employee for an extra hour of work. Changes made less than 24 hours before the shift start would cost the employer two to four hours of pay.
Congressional action
At the federal level, Congress has considered, but not passed, legislation on scheduling.
For example, the Schedules That Work Act would require employers to engage in a reasonable accommodations-style discussion of a worker’s schedule. The employer would have to grant an employee’s scheduling request unless there is a bona fide business reason. Employees could justify their requests based on a serious health condition, care-giver responsibilities, enrollment in education or training or, in the case of part-time employees, moonlighting.
How to Comply
If your company received one of the attorney general letters, contact your attorney immediately. Even if your company did not, now is a good time to review your scheduling practices.
Department of Labor information-gathering efforts so far have included finding out what tools employers currently use to manage workflow and employee schedules.
In his 2015 interview, Weil noted that new technology allows employers to track hours and schedule work far more efficiently than in the past. That’s a strong hint that employers should explore how scheduling software might be used to provide more notice to workers.
Moving to more predictable schedules can offer many benefits: lower turnover costs, better morale and maybe even fewer workplace accidents. By making changes before any legal requirements are put in place, employers will be free to experiment with different schedules and workflows to find the optimum arrangement.
On-call scheduling gets extra scrutiny
Regulators appear to be particularly concerned about on-call scheduling. New York Attorney General Eric Schneiderman last year sent an inquiry to several large retailers requesting information about their practices and examining whether some “on-call “ policies violated state law.
New York law entitles employees to a minimum compensation if called to work even if they are sent home early. Schneiderman’s letter led some major retailers to discontinue “on-call” scheduling.
In California, several plaintiffs have filed class-action lawsuits alleging that some on-call policies violate state law. Several other states and municipalities have proposed legislation prohibiting on-call scheduling.
That means the writing may be on the wall. Employers that use on-call scheduling should consider alternatives and check to ensure their policies comply with applicable state laws. Review scheduling practices with your attorney to prepare for changes that may be on the way.
