Time & Attendance
By Andie Burjek
Oct. 15, 2020
Predictive schedule laws began in San Francisco in 2013, and from there different cities and states have enacted legal protections as well. These work schedule laws have been gaining momentum ever since.
However, come COVID-19 and challenges it’s brought to organizations nationwide, the momentum has shifted. Both employers and employees are struggling in their own ways, and employers must manage this new normal while maintaining compliance with workplace laws.
Even in this state of uncertainty for employers, the reality is that fair workweek laws help bring stability to employees’ lives. Advocacy organizations stress the importance of this legislation that makes planning child care easier, makes it possible to take on a second or third job and often bans shifts so close to each other that employees lack a proper rest period, said Marta Moakley, legal editor at XpertHR. The idea here is that employers should learn boundaries and respect employees’ time outside work.
Moakley does not expect a huge push for new fair workweek laws in 2021, given how stressed so many industries and organizations are. That being said, there are still laws already in effect and opportunities to include flexible workweek provisions in other regulations.
Predictable schedule laws and COVID-19
During the COVID-19 pandemic, certain work schedule laws have been especially difficult for employers to meet, Moakley said. For example, some predictable scheduling laws require a pay premium called predictability pay in which if an employee does not get advanced notice on their schedule, they get additional money. Depending on the location, employers may need to provide a schedule for employees up to 14 days in advance.
“There’s that additional payment and additional penalty on an employer. As you can imagine in the current pandemic condition, these kinds of onerous requirements for employers may be extremely difficult to meet, so a number of jurisdictions and local governments have been looking to provide employers some relief,” she said.
For example, Philadelphia passed a predictable scheduling ordinance that was originally supposed to go into effect Jan. 1, 2020 on an “extremely aggressive timeline,” Moakley said. The city ended up delaying the requirements until April 1, 2020 due to the pandemic, and while companies may need to comply with other portions of the law, certain provisions like the predictability pay premiums are still not being enforced because of pandemic conditions.
Which employers get relief may depend on what industry they’re in, she added. COVID-19 has affected the hospitality, retail and restaurant industries in different ways. A retail employer may have had to shut down operations for weeks or even months while restaurants, on the other hand, may have remained open in limited capacity as an essential provider of food.
“Looking forward to 2021, we really have to think about, what will be the market tolerance for enforcing these kinds of provisions, and [are they fair?] with respect to certain industries that may be greatly affected by the pandemic?” Moakley said. “If we’re still in a recession then, I think employers will have a really good argument that their focus should remain on safety and security at this time.”
On the other side, the pandemic has also illuminated the plight of the employee and some of the inequities between workers at the top and bottom of the ladder, she added.
There are advocacy organizations advocating for hourly employees and communicating to employers that “we know you’re having a tough time. We understand your argument, however, employees also have to deal with the effects of COVID-19, including unpredictability with respect to school and with respect to health,” she said.
She added that while there have been pending fair workweek bills in Illinois, New Jersey and Massachusetts in 2020, there has been no traction with new predictable schedule bills this year. “I think most of it has to do with the pandemic,” she said.
Still, employee-friendly scheduling provisions wouldn’t necessarily need to be packaged in a fair workweek law and could be included in other types of regulations, she said. For example, Tennessee has a pregnancy accommodations law that went into effect Oct. 1, 2020, and it includes modified work schedules and flexible scheduling for prenatal visits as an employee-friendly scheduling provision.
Rethinking common workplace assumptions
The genesis of these work schedule laws is lawmakers trying to correct the power imbalance between employers and employees when it comes to scheduling. Moakley said she is seeing more dialogue between employers and employees now with the consequences of the pandemic. The more forward-thinking employers are doing what they can to expand leave and allow more intermittent or flexible leave for employees.
The pandemic has led to greater acceptance of the reality of racial and economic inequalities, and these external drivers are leading to better workplace cooperation and communication, she added. Employers are appreciating employees more for being dependable and dedicated and coming to work even under hazardous pandemic conditions, and employees are appreciating that they have a job, can continue working and don’t need to rely on unemployment benefits.
“There is this greater acceptance of the reality of inequities within the workplace and a renewed sense of working toward a better tomorrow,” she said. “Intelligent minds will differ on their choice of policy — whether more broad regulation would solve it or whether more targeted regulation would get better results — but I think the fact that we haven’t really seen anything being adopted this year means that there is more cooperation along these lines.”
Rely on communication and best practices
Not just regarding predictable scheduling practices but with employment law overall, employers need to be looking at best practices now and really trying to retain their best employees, Moakley said. If they have a scheduling request — especially under the circumstances 2020 has introduced —consider what can be done for them. There may be an issue with child care or a health concern that isn’t covered by the company’s leave policy. This type of uncertainty is not uncommon now.
“Having an open avenue of communication with employees, relating to them and trying to work together works wonders for everybody’s benefit,” Moakley said.
She also suggested that organizations document what they are doing to support employees and offer flexibility to them, even if it is not required by law. Some employers may be genuinely trying to give employees flexible schedules whenever possible or to offer them shifts they wouldn’t otherwise have access to if they need extra hours, rather than seeking out outside workers. In any case, it’s still possible that an employee may file a lawsuit against this employer.
“Do yourself a favor and document, even if you’re not required to. Show that you are following the rules, that you’re a good employer, [and] that you’re doing right by your employees. And then in the event that somebody comes to check on you, you have the records to back you up,” Moakley said.
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