FAQ #1: What is Predictive Scheduling?
If you are a grocery store, restaurant or other retail entity in California, it’s important to know that predictable scheduling could become the law under proposed legislation, and the Los Angeles City Council is backing a similar ordinance. Under the federal Fair Labor Standards Act (FLSA), which passed in 1938 and recently updated to include newly eligibility requirements for overtime pay, employers have been allowed to change an employee’s schedule at will. This could be done without advance notice or any requirement to post or change the schedule with consent from an employee, unless otherwise dictated by a union or collective bargaining agreement or if in danger of violating other labor laws, such as overtime.
The measure proposed in Los Angeles and being considered in other cities in CA, including San Francisco and Emeryville [and it’s already a state law in Oregon], correlate to "fair workweek" laws, which dole out premiums to employers for disruptive, last-minute changes or shift cancellations when not followed.
FAQ #2: So what does Predictive Scheduling rally have to do with FAIRNESS?
Dubbed the “Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance”, San Francisco’s ordinance applies to retail employees including janitorial and custodial staff, with 20 or more employees in the City and 40 employees worldwide, and requires covered employers to provide “predictability pay” for on-call work shifts, for shifts where the employee confirms within less than 24 hours, or for other unexpected schedule changes that crop up. The ordinance outlines that covered employers must provide employees with two weeks’ advance notice and if the schedule is changed within 7 days of the shift, employers must pay 1-4 hours’ compensation depending on the amount of notice given and length of shift. While on-call shifts are still allowed, they must be written into the schedules AND the employer must provide 2-4 hours of pay if the employee is not called into work (barring some exceptions).
This is one example of similar State and municipal efforts to mitigate the long-established practice of on-call scheduling. This means workers are expected to show up for work on short notice or may have shifts canceled without reasonable compensation. Because of this, predictive scheduling is often referred to as “schedule fairness”. Data shows that unpredictable work schedules markedly affect low-income workers. Unpredictable scheduling becomes problematic for workers that are tying to juggle more than one retail job, may be attending school during the day or at night, and may have difficulty arranging childcare. When given little to no notice of changes it is very difficult to accommodate the request or even figure out transportation or commutes at the last minute. The fallout from unpredictable scheduling is that it disproportionately affects hourly [i.e. non-salaried] employees, who often occupy lower socioeconomic strata and represent minority populations.
FAQ #3: How does Predictive Scheduling HELP workers?
Providing employees with their work schedules in advance affords them the time and opportunity they need to plan their lives and set up contingency plans if need be. While many retailers make an effort to provide as much advanced warning as possible—i.e. many days’ notice—it isn’t ALWAYS feasible when last-minute requests to not work or work cancellations pop up, resulting in employers or managers having to scramble and assign new workers to the schedule at the last minute.
With predictive scheduling, the pendulum is beginning to swing towards the worker and regulating the amount of notice employers gives employees—for example, San Francisco’s law requires “predictability pay” for on-call shift workers, ensuring that the employee is given enough advance warning (i.e. 2 weeks’ notice). For example, if the schedule was to be changed within a 7-day window prior to the written or posted schedule, the employer must pay 1-4 hours’ pay to the employee — dependent upon the amount of notice given and/or length of the shift (barring some exceptions).
FAQ #4: What contributed to Predictive Scheduling laws coming into existence?
The culmination of recent labor union strikes, legislation backed by lobbyists for statewide predictive scheduling rules, bans, or limitations on the use of on-call shifts, backlash from worker activists, and the ensuing publicity from recent class-action lawsuits filed against many major retailers have all led to retailers having to abandon on-call scheduling.
For example, Victoria's Secret agreed to pay $12 million in 2017 to resolve a California class-action lawsuit filed by 36,000 hourly employees who claimed the company owed them for canceled on-call shifts. As a result of these types of lawsuits, many employers have abandoned on-call scheduling and have succumbed to the law.
FAQ #5: Besides in the states of California and Oregon, where have Predictive Scheduling Ordinances or "Fair Workweek" Laws been passed?
Similar to Los Angeles, the city of Seattle banned “clopening” shifts outright in 2017 [“clopening” refers to employees who work the closing shift and then come back to work the opening shift the next day], unless employees consent and are paid at 150% of their regular rate if shifts are separated by less than 10 hours.
Other cities where similar ordinances or laws have been passed are Chicago, New York, and Philadelphia. These types of city ordinances have resulted in a positive residual effect of predictive scheduling, including better morale and improved employee relations between the workers, management, and HR department.
FAQ #6: Is there any wiggle room or flexibility for employers AT ALL?
No. The regulation of employee scheduling puts the entire burden of unpredictable staffing needs fully on employers. An alternative that is not so desirable, but feasible, is to overschedule employees and then cancel shifts before they report to work, or implement “just in time” scheduling software to generate schedules with very little advance notice. Currently, states like California do not prohibit these practices so employers can cancel an employee’s shift without penalty as long as they have not reported to work (by phone if it’s a telephone-based job, or in person).
All signs are pointing towards more and more cities and states adopting predictive scheduling and fairness practices for the benefit of hourly employees in the retail industry. However, if your business or retail company/franchise is located in a city or state where an ordinance or law has NOT been passed, it still behooves you to check with your corporate counsel or legal representative to ensure that your current practices are legal within your jurisdiction and to keep you abreast of any recent changes or any in development in state Senate.
OnePoint’s Advanced Scheduling uses employee profiles and rules-based configurations to ensure consistent coverage, fill shifts efficiently, or measure schedule effectiveness. This allows your company to align its labor or workforce with demand and adhere to internal and regulatory policies. Read more of the benefits of Advanced Scheduling here: https://www.onehcm.com/products/advanced-scheduling/
Additionally, OnePoint’s recently released employee self-service functionality for our Advanced Scheduler module empowers employees to post requests for coverage, access the open shifts dashboard, and swap shifts automatically with approved team members through any device. Read the new Product Update here: https://www.onehcm.com/product_updates/scheduling-self-service-features-released-onepoint-tlm/
