Oregon Enacts First Statewide Predictable Scheduling Law

Large retail, hospitality and food service businesses must give workers advance notice of hours, rest periods

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Certain large employers in Oregon will soon have to comply with a new predictable scheduling law by providing employees with advance notice of their work schedules and time to rest between shifts.

Gov. Kate Brown signed S.B. 828 on Aug. 8. Most of the new law's provisions will take effect in July 2018—though some will be phased in over time.

The law will cover nonexempt employees working for retail, hospitality and food service businesses with 500 or more employees worldwide.

Predictable scheduling laws respond to concerns about hourly workers who need to juggle other responsibilities—such as child care and a second job—with the demands of their employer, said Benjamin O'Glasser, an attorney with Bullard Law in Portland. "The laws operate from the premise that employers should not be able to externalize the costs of scheduling changes to their hourly workers," he noted.

Courtney Blanchard, an attorney with Nilan Johnson Lewis in Minneapolis, said this is just the beginning of the predictive scheduling trend, which could ultimately mirror the wave of paid-sick-leave laws across the country.

"One of the biggest challenges for multi-state employers is complying with very different laws in numerous jurisdictions," she noted.

[SHRM members-only multistate coverage: Multistate Employer Resources]

Scheduling Practices

Blanchard said large employers in Oregon will lose flexibility around scheduling practices because of the new law.

"An employee cannot be forced to report for a shift that was not previously scheduled," she explained. "If an employer changes the schedule outside of the notice period or sends employees home during a slow day, [the employer] will pay for it."

Among other mandates, the new law will require covered employers to:

  • Provide new employees with a written good-faith estimate of their work schedule at the time of hire. The estimate needs to include the median number of hours an employee can expect to work in an average one-month period.
  • Provide current employees with their work schedules in writing at least seven calendar days in advance. Fourteen days of advance notice will be required beginning in 2020. The employer must also post a copy of the schedule in a conspicuous and accessible place.
  • Provide rest periods of at least 10 hours between shifts, unless the employee requests or consents to work during a rest period and is paid one-and-one-half times his or her regular pay rate for that time.

Employees may request not to be scheduled for certain shifts or not to work at certain locations.

"The law will require employers who change an employee's published schedule in the two weeks before a shift to pay certain premiums as predictability pay," O'Glasser explained.

The bill provides several ways to avoid this premium pay, Blanchard said. "For example, an employer can create a 'standby' list for employees who may volunteer to pick up additional shifts" without the employer having to pay any premium rate.

Employees may also mutually agree to swap shifts with other workers.

Oregon's law pre-empts local ordinances. Therefore, municipalities in the state will not be able to impose additional requirements. But multistate employers will still have to contend with the patchwork of state and city laws that are popping up outside of Oregon.

"Employers should know that not all predictable scheduling legislation is created equal," O'Glasser said. "For example, Oregon's law is much more restricted in scope than Seattle's ordinance." 

He noted that Oregon's legislative process included both labor and management perspectives, which resulted in a "relatively moderate piece of legislation."

Tips for Employers

"Covered employers should take the time to improve their record-keeping policies and refine their scheduling practices and policies," O'Glasser said.

He noted that even employers who are not covered by the new law should study their staffing needs in order to be prepared if the law is expanded. 

"If more cities and states pass predictive scheduling measures, employers will have to either tailor policies to geographic regions or adopt a universal policy by selecting the most restrictive requirements," Blanchard said. Employees often blend the two approaches by creating policies with some "universal" provisions and limiting the most burdensome practices to specific regions, she added.

"On a practical level, this is an area where big data can help with compliance," she said. "Some employers are already implementing tools to fine-tune predictions about how many employees are required to operate at any given time."

 

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