By Andie Burjek
Jun. 2, 2020
Chicago’s fair workweek law goes into effect on July 1, 2020.
Chicago joins the ranks of other cities like San Francisco, Emeryville, San Jose, Berkeley, New York City, Seattle, SeaTac and Philadelphia that have predictive scheduling laws. Oregon, meanwhile, is the only state with one of these laws in effect, while New Hampshire and Vermont have more limited scheduling-related laws.
The past few years has seen a wave of predictive scheduling laws, making it a hot topic in industries like retail and hospitality, said Ari Hersher, partner at Seyfarth law firm. Hersher described predictive scheduling as “the next big thing” — much like a wave of paid sick leave laws that began surging in the late 2010s and created a patchwork of local and state laws across the United States. COVID-19 has only increased this trend of paid sick leave laws.
The COVID-19 pandemic has had a few notable impacts on fair workweek laws in 2020, he added. Industries like retail, food service and hospitality that have been greatly impacted by the pandemic are also the industries primarily impacted by predictive scheduling laws. While COVID-19 has not stopped cities and states from enacting the laws currently in place, it’s uncertain if new laws will continue with the same momentum as they did pre-pandemic.
“It remains to be seen what will happen post-COVID. I think there will be an interesting push and pull,” Hersher said. “There will be a strong desire to not overly restrict these businesses like retail that have been so devastated by the coronavirus, but also [give] all these employees — who may have kids out of school or need to work multiple jobs in order to manage — the scheduling stability and notice that they can manage their lives.”
COVID-19 aside, these laws already exist in several municipalities. Hersher went over these laws about work schedules and how employers can work with them.
The meat of these laws
Laws vary by city or state, but they generally include four common provisions, according to the National Retail Federation. These provisions are:
Predictive scheduling laws are meant to address common concerns hourly employees have, including unpredictable, unstable and often insufficient work hours. As a 2018 Economic Policy Institute article explained, “Employers in some industries have increasingly adopted scheduling practices that leave workers in desperate need of additional work yet hampered in their ability to actually seek supplemental work elsewhere or find a new job altogether.”
Certain scheduling practices that some employers adopt “shift more of the risk and costs of doing business from firms onto their employees,” the article continued. For example, they may require employees to maintain “open availability” for all hours the store is open, giving them basically no input in the days or times they work.
Impact on employers
These laws put a strain on employers, for whom most scheduling changes aren’t intended, Hersher said. Employees may call in a few days or hours before their shift starts, leaving employers little time to find a replacement. They need flexibility to create good schedules.
The financial penalties for breaking predictive scheduling laws are substantial for employers, he added.
In addition, some employers may have to comply with multiple predictive scheduling laws, depending on what states or cities they operate in. Complying with this patchwork of laws is complicated and requires different workplace policies for different locations.
The Society for Human Resource Management suggests that employers should audit their locations. “A centralized staffing model can quickly become outdated, or even worse, a liability. Location-specific policy changes may need to be made, and managers may require retraining on how to handle staffing shortages.”
Using predictive analytics to create schedules weeks in advance is one solution to avoid overstaffing and understaffing, Hersher said. Certain technology solutions may help, too, if they can help employers take different regions’ predictive scheduling laws into account as they create schedules.
Communication is also key. Some newer predictive scheduling laws include the “suggested interactive process,” he said. This is optional but encourages employers to have a dialogue with new employees. Usually, when someone begins an hourly job, their manager tells them what their days and hours will be. With the interactive process, the new employee can have their say in the conversation. “I have another job or other responsibilities these days and times, but what about this schedule instead?”
The employer has the ultimate decision over the employee’s schedule, Hersher said, but having that conversation can help employees feel respected and heard.
Laws about work schedules during the COVID-19 pandemic
Fair workweek laws are still in place and being enforced in the midst of COVID-19, Hersher said. For example, in San Francisco the Office of Labor Standards Enforcement is continuing to pursue complaints, file investigations and move forward with these laws like before. On a city-to-city basis, there are realistically different enforcement levels, he said, but it’s important to remember that municipalities or agencies don’t need to pause their enforcement work in light of store closures.
“Retail is already facing a lot of challenges. And whether the government wants to put a lot more financial burden on their existence is something they’ll really have to consider,” Hersher said. “It’s a delicate balance to come up with a law that doesn’t force shops to close but is also protective to employees.”
Hersher believes the conversation around predictive scheduling will have to evolve because of coronavirus.
While predictive analytics generally can help businesses with scheduling, it will be much more difficult to predict scheduling needs for the next year and half or so because of the pandemic, he said. Historical data from previous years may not be applicable in post-pandemic times, and businesses don’t know to what degree people will return to restaurants and stores.
He suggested that employers do what they can to create schedules far in advance and focus on honest conversations with employees.
“Employers can say, ‘We’ll give you 30 days notice, but please understand that our scheduling needs are volatile,’ ” he said. “People should [try to] understand each others’ needs and be mindful of them.”
Employers can also communicate to all their employees and explicitly ask who would want additional hours if they become available and what other days and times they could work. Taking a proactive measure like this can help both sides in helping employees get more hours and helping employers get the people they need.
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