Don't Be Caught Off-Guard by Predictive Scheduling Legislation 

A restaurant worker looks at her upcoming schedule

What you need to know about the initiatives in Congress that would allow certain state and local governments to dictate how restaurants schedule their employees.

In approximately a dozen states and a number of smaller municipalities across the U.S., initiatives have been introduced that would allow state and local governments to dictate how restaurants (and retailers) schedule their employees. Some view this approach as interfering with employers’ rights to control the workplace while others view it as a necessary tool to protect the rights of food industry and other retail workers.  

Often referred to as predictive scheduling laws, the new rules emanate from the fact that workers often have very little ability to make adjustments to their work schedules in order to meet their responsibilities outside of work. 

In Congress, the pending Schedules That Work Act would require that schedules be provided in writing two weeks in advance with penalties for employers if changes are made with less than 24 hours’ notice. As those changes are implemented, restaurant owners are finding that they must make significant adjustments to how they run their businesses in order to stay in business.

Arguments for and against predictive scheduling

Predictive scheduling activists argue that employers too often use scheduling practices that directly interfere with employees’ personal lives and ability to plan around their work hours, while others believe government intervention in the scheduling of employees through a one-size-fits-all approach intrudes on the employer-employee relationship and creates unnecessary mandates on how a business should operate.  

Many in the foodservice industry are concerned that predictive scheduling legislation will impede employers’ needs to adapt to changing conditions, particularly in small, independently owned businesses that have limited staff and resources and may not be able to afford the penalties related to violations. Some employees have also voiced concern that they could lose some of the flexibility that attracted them to the foodservice industry in the first place.

Commonalities in the predictive scheduling laws

There are a variety of common components of predictive scheduling legislation.

Employee scheduling requests
Giving employees the right to make scheduling requests without employer retaliation. Employers would be required to consider scheduling requests from all employees and provide a response. In some instances (for healthcare issues for example), the employer would be required to grant the request unless there is a bona fide business reason not to do so—e.g., an inability to reorganize work among existing staff or the insufficiency of work during the periods the employee proposes to work. (Similar laws have been in place for more than a decade in the United Kingdom.)

Shift scheduling changes
Requiring employers to be pay employees for a minimum of four hours of work or the minimum number of hours in the scheduled shifts, whichever is fewer, when an employee is sent home from work early without being permitted to work his or her scheduled shift. In addition, if an employee is required to call in less than 24 hours before the start of a potential shift to learn whether he or she is scheduled to work, an employer could be required to pay the employee a premium, equivalent to one hour of pay. 

Split shift pay 
If an employee is required to work a shift with nonconsecutive hours with a break of more than one hour between work periods, an employer could be required to pay the employee a premium for that shift, equivalent to one hour of pay. 

Advance notice of schedules
When an employee is hired, an employer could be required to disclose the minimum number of hours an employee will be scheduled to work. If that minimum number changes, the employer could be required to give the employee two weeks’ notice of the new minimum hours before the change goes into effect. In addition, employers can be required to give employees their work schedules two weeks in advance and, if an employer makes changes to this work schedule with notice of only 24 hours or less, the employer could be required to pay the employee a premium, equivalent to one hour of pay. 

In order to handle predictive scheduling mandates, business owners should explore software options and even retaining outside vendors that provide scheduling and labor management solutions. A lack of training or understanding of predictive scheduling can be detrimental to a business’ bottom line, since scheduling practices can have a dramatic impact on labor costs. As with most new legal developments, training and education are key.

This article was written by Jonathan M. Weis, partner at Levin Ginsburg, Chicago. Jonathan has represented clients in a variety of industries and has extensive experience working with large multinational and public companies as well as smaller businesses, startups and individuals.

This article is for informational purposes only. It is not legal advice. Always consult with your lawyer regarding your specific circumstances.