Predictive-Scheduling Rules Are Unpredictable Due to Coronavirus

By Stephenie Overman April 7, 2020
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The deadly coronavirus crisis has upended employment and many employment laws, including rules that govern predictive scheduling.

Predictive-scheduling laws usually target the retail and hospitality industries, where "on-call" or "just-in-time" scheduling has become commonplace. The laws require companies to post employees' work schedules in advance—usually seven to 14 days ahead of time—and provide "predictability pay" penalties when employers make last-minute schedule changes.

'Evolving Day by Day'

Currently, Oregon has the only statewide predictive-scheduling law. San Francisco was the first city to roll out a local ordinance in 2015, and cities such as Emeryville, Calif., New York City and Seattle followed. These areas are among the hardest hit by the COVID-19 pandemic, and many operations have had to shut down or drastically alter employees' schedules.

The laws in many jurisdictions provide exceptions to the notice rules and penalties when acts of nature or other circumstances outside the employer's control hinder operations. Elisa Nadeau, an attorney with Littler in San Jose, Calif., said, "I believe a strong argument could be made that this [pandemic] would qualify."

San Francisco's Formula Retail Employee Rights Ordinances and Emeryville's Fair Workweek Employment Standards both contain exemptions to their predictability pay requirements when employees or property is threatened or when civil authorities recommend that work not begin or continue.

The San Francisco city attorney's office was "making a case-by-case determination" of employers' requests for exemption, said Jay Cheng, public-policy director of the San Francisco Chamber of Commerce. "Obviously, this virus is evolving day by day."

Samuel Bayless, director of policy for the California Fuels & Convenience Alliance, said he had not heard of any members of the association asking for an exemption because of the coronavirus crisis.

In the Big Apple, the predictive-scheduling regulations are still in effect. "There is no appetite by the mayor to suspend them in any way, shape or form," said Glenn Grindlinger, an attorney with Fox Rothschild in New York City.

New York City's Fair Workweek laws, in effect since May 2017, levy fines against retail and fast-food employers when they fail to provide employees 14 days' notice of schedule changes or shifts scheduled with less than 11 hours between them. Retail employers are prohibited from using on-call scheduling within 72 hours of an employee's shift starting. Fast-food employers are required to give an estimate of workers' schedules upon hiring.

An exception is allowed when a state of emergency is declared, Grindlinger said. "The [COVID-19] emergency has been declared, but it only applies if your business cannot continue or has to close. Fast-food restaurants can have takeout and delivery; they are not technically ordered to close. As long as they remain open, predictive-scheduling ordinances are in effect."

The Seattle Office of Labor Standards issued a "special notice regarding secure scheduling and COVID-19," informing employers covered by the city's Secure Scheduling Ordinance that they "do not need to provide premium pay for schedule changes if business operations cannot begin or continue due to recommendation of a public official, including public health officials."

Seattle's ordinance went into effect in July 2017. It covers hourly employees at retail and food services establishments with 500 or more employees worldwide. Full-service restaurants also must have 40 or more full-service locations worldwide.

Oregon's Bureau of Labor and Industries noted on its website that its predictive-scheduling law, which affects employers with at least 500 employees worldwide, "provides for employer relief from penalties and obligations for providing additional compensation under extenuating circumstances such as natural disasters or declarations of public officials."

The statement read that Oregon Commissioner of Labor and Industries Val Hoyle "believes that a declaration of public officials clearly includes emergency declarations by the governor of Oregon and local elected officials. Commissioner Hoyle's interpretation and application of the law's requirements and its penalties will account for these realities and common sense."

New Laws

Philadelphia was scheduled to enact its own predictive-scheduling ordinances on April 1. "The city announced that it will not be enforcing the predictability pay portion in light of the coronavirus," observed Jeffrey Csercsevits, an attorney with Fisher Phillips in Philadelphia.

Philadelphia's ordinance includes hotel, retail and food services workers. A covered employer is one that employs 250 or more employees and has 30 or more locations worldwide. The 250 employees includes full-time, part-time and temporary workers.

Chicago's Fair Workweek Ordinance, which is set to take effect July 1, will include health care providers and manufacturing, hotel and building services employees, in addition to retail and food service workers.

The city of Los Angeles recently introduced a motion calling for a predictive-scheduling ordinance.

Businesses in some states know they will not be affected by predictive-scheduling rules. Georgia and Tennessee restrict local governments' ability to adopt scheduling ordinances. In Iowa, local governments may not adopt employment-related regulations, and in Arkansas, local governments may not adopt employer requirements that are not state or federally mandated.

Stephenie Overman is a Washington, D.C.-area writer who specializes in workplace and health issues.

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