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November 10, 2020
Right on Time? Watch Out for Predictive Scheduling Laws

Several major cities (and one West Coast state) recently adopted predictive scheduling laws, which require employers to post work schedules more than 1 week in advance. While the Midwest region hasn’t yet seen an influx of the laws, you should pay attention because the trend is an employee-friendly response to the last-minute scheduling approach dominating industries in which customer demand is uncertain, such as restaurants and retail stores.

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Potential Impact on Employees

When employers create last-minute work schedules or make late changes, employees can suffer unintended consequences. Sometimes, they make the time and effort to arrive at work only to learn they’re no longer needed. Or a worker might not be on the original schedule, but the employer later adds her without checking availability. If she doesn’t come in for the newly scheduled shift, the incident can be treated as a “no-call, no-show,” resulting in discipline.

Most predictive scheduling laws tend to focus on service industries that rely on an hourly workforce, including retail, food service, hospitality, and janitorial work. At least until the COVID-19 pandemic hit, they were some of the fastest-growing industries in the United States, employing tens of millions of employees. Some data indicate one-third of all workers and more than one-half of all hourly workers get their schedules with less than a week’s notice.

All in the Timing

Predictive scheduling supporters say the system has many benefits. With advanced notice about schedules, workers can plan for childcare and pursue education and training opportunities that require steady schedules. Reliability also helps stabilize income so workers can budget effectively. Many service industry workers have more than one job, but unpredictable schedules can lead to uncertainty because they don’t know if they should fill their time with other work from a second (or third) job. Lower-income workers can even lose opportunities for public benefits because they can’t accurately report income due to the wage fluctuations caused by last-minute scheduling changes.

Proponents also argue both employees and businesses could benefit from the laws. The stress and worry of last-minute scheduling can drain productivity and increase turnover. Predictive scheduling could reduce both problems. More reliable schedules would likely contribute to higher job satisfaction, greater organizational loyalty, and lower absenteeism, leading in turn to lower expenses associated with the never-ending cycle of recruiting, hiring, and training new employees.

But, predictive scheduling laws can certainly have downsides. Allowing employers to make late changes to schedules can help businesses avoid paying for more workers than they actually need. For example, if an unexpected weather event leads to lower restaurant traffic on a Friday night, a predicative scheduling law may prevent the employer from canceling shifts or allowing employees to leave early—or at least prevent the employer from being required to pay for the canceled and early-ending shifts.

Predictive scheduling laws also often require businesses to adopt computerized automated scheduling systems that need training and steep fees to purchase and use. And the cons affect workers, too. Some employees say predictive scheduling laws make it difficult for them to make last-minute schedule changes and could prevent opportunities to pick up additional shifts when they could use the extra income.

Legislative Watch

Over the past few years, New York City, Seattle, San Francisco, and Oregon have enacted laws requiring predictive scheduling in certain industries. Chicago and Philadelphia just passed their own laws that went into effect over the last few months. California is even considering a bill that would fine employers who don’t give adequate scheduling notice. Typical legislation focuses on workers in large retail and food establishments. Requirements usually include two or more weeks of scheduling notice and compensation for last-minute shift changes.

Legislation in those cities and states might not affect the Midwest, but federal legislation would bind all states—even those with laws preempting predictive scheduling legislation, such as Arkansas. The Schedules That Work Act (STWA), introduced in Congress in 2019, may be just the bill to shift predictive scheduling from a popular idea to a federal mandate. The proposed bill failed in the past, but the current Congress still has until its 2021 adjournment to pass the latest version, and Senator Elizabeth Warren of Massachusetts has reinvigorated the bill as its new Senate sponsor.

Under the STWA, workers would have the right to more flexible or predictable schedules, more or fewer work hours, and minimal fluctuations in scheduling. The Act would require employers to consider and respond to schedule requests while providing employees with clear expectations about their hours. Probably most important to employers, the proposed law would require them to pay employees for last-minute changes.

Punching Out

Predictive scheduling hasn’t reached Arkansas, Kansas, Missouri, or Oklahoma—yet—and it’s unlikely the proposed federal law could garner the support needed to pass the current Republican-led Senate. Nevertheless, employers throughout the nation should pay attention to the issue. Growing interest in the new system, combined with increased unemployment and current concerns about job safety and security in the service industry, could lead to a groundswell of support in years to come.

Jessica Bowes was a summer associate with Foulston Siefkin LLP, the largest and one of the oldest law firms in Kansas. If you have questions, feel free to contact the firm’s employment attorneys at 316-267-6371.

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