Predictable-Scheduling Laws May Impact More California Businesses

Predictable schedules could become the law for hourly workers at California's grocery stores, restaurants and retail stores under proposed legislation, and the Los Angeles City Council is backing a similar ordinance for the state's largest city.

If the Los Angeles proposals are enacted, the metropolis will join San Francisco and Emeryville, where "fair workweek" laws require that employees receive advance notice of their schedules or collect premiums for disruptive, last-minute changes or shift cancellations. The measures take aim at the practice of on-call scheduling, when workers are expected to show up for work on short notice and may have scheduled shifts canceled without compensation.

Many major retailers have abandoned on-call scheduling, which has come under fire from labor unions and activists, because unpredictable work schedules prevent low-income workers from holding more than one job, attending school and arranging child care. Victoria's Secret agreed to pay $12 million in 2017 to resolve a California class-action lawsuit by 36,000 hourly employees who claimed the lingerie seller owed them for on-call shifts that were canceled.

Other Cities Get on Board

Predictable-scheduling laws took effect in 2017 in Seattle and New York City. Philadelphia's Fair Workweek Law takes effect April 1, and Chicago's begins July 1.

At least 11 other municipalities and states are mulling workweek legislation, said Susan Lambert, a University of Chicago professor and employment expert who studies workers' schedules.

San Francisco became the first U.S. city to require large chains to provide predictable schedules to their workers and janitorial and security services.

[SHRM members-only toolkit: Complying with California Wage Payment and Hours of Work Laws]

Since the Formula Retail Employee Rights ordinances took effect in 2015, several businesses operating in San Francisco have paid out penalties and restitution following  investigations of their scheduling practices. For instance, the pharmacy chain CVS, footwear seller Skechers, and cafe and bakery Specialty's settled their cases without admitting guilt. More investigations are pending, said Greg Asay, deputy director of San Francisco's Office of Labor Standards Enforcement.

His staff investigated workers' complaints that they did not receive mandated premium pay when employers provided less than two weeks' notice for schedules, made last-minute shift changes, and filled shifts with temps or new hires instead of first offering the work to qualified part-timers.

Premiums for on-call shifts and schedule changes range from one to four hours' pay at the employee's pay rate, and the city can impose penalties of $50 a day per worker.

Emeryville has several open investigations into compliance with its fair-workweek ordinance, but none have been resolved yet, a spokeswoman said.

Patchwork Measures

Gary McLaughlin, an attorney with Akin Gump in Los Angeles, thinks the city will likely enact workweek legislation. He also expects large businesses operating statewide, even outlets that operate in municipalities without on-call scheduling laws, to adopt predictable-scheduling regulations. Otherwise, those businesses will struggle to comply with a patchwork of similar—but not identical—laws.

"The challenge now for HR professionals is keeping up with what's going on," McLaughlin said. "It's easy to lose track of local ordinances."

California Sen. Connie Leyva, D-Chino, a former labor leader, is trying once again to take predictable scheduling statewide with SB 850, the Fair Scheduling Act of 2020. The measure would require grocery stores, restaurants and retail stores to give workers their schedules seven days in advance or pay them premiums for providing less notice. Introduced in January, it resembles the bill Leyva introduced in 2016 that died in committee.

Conflicting Pressures

Businesses struggle with the conflicting pressures of holding down labor costs while ensuring adequate staffing to serve customers, stock merchandise and ring up purchases, said University of Chicago's Lambert, who is studying Seattle store managers' compliance with the city's predictive-scheduling law.

"There's still a lot of training that needs to be done," she said. "These laws require quite a bit of documentation because, if a schedule change is employer-driven, the employee receives a predictability premium. Tracking whether a schedule change was initiated by an employee or employer and when that extra hour of pay is due is quite a bit of paperwork."

Front-line store managers who schedule workers' shifts have Lambert's sympathy. They must build realistic work schedules, comply with a slew of staffing laws and meet their employer's business goals.

Apps that allow workers to swap shifts or volunteer for extra hours at the last minute can help ensure adequate staffing and eliminate premium pay for on-call scheduling, but, Lambert warned, "technology is not going to solve these fundamental issues with a business model that focuses on reducing outlays for labor as a primary goal."

June D. Bell, who is based in the San Francisco Bay Area, is a regular contributor to SHRM Online.