Predictive Scheduling laws are driven by the public policy of providing workers with predictability and consistency in their work schedules. Currently, local-level ordinances cover “formula retail workers”, a group viewed to be especially vulnerable to sudden changes in work schedules. The definition of a formula retailer varies based on the jurisdiction, but it’s helpful to think of them in terms of “chain stores” that have several locations, offer a standardized set of products or services, and have standard branding elements.

What Do Predictive Scheduling Laws Do?

Here are a few scenarios that predictive scheduling ordinances try to prevent:

Susan Nightclass
Susan works at a formula retail establishment–it’s a fast food franchise. She also takes night classes beginning at 6:00 PM on weekdays. This works well for Susan because she works morning and lunch shifts. However, sometimes her manager asks her to cover evening shifts when other employees are sick, quit, or otherwise unavailable. This makes it difficult or impossible for her to attend classes, but she chooses to work the extra shift for fear of drawing the ire of her manager and losing hours.

Joe Childcare
Joe works at a big name coffee shop. He likes the job because he can work early morning shifts and get off in time to pick up his children for school. This is a great arrangement for his family, as it doesn’t require planning and financing childcare. However, oftentimes, Joe’s manager will ask him to work an afternoon shift to cover another worker’s absence or exit. In these instances, Joe and his wife must scramble to find childcare–and the money to pay for it.

Patty Part-time
Patty works at a chain restaurant. She waitresses a 4 hour lunch shift, which works great because she spends her mornings working on her freelance writing gig. Unfortunately, freelancing and waitressing don’t quite make ends meet just yet. Patty has repeatedly asked for another shift to bring her up to full-time, but her employer prefers to hire additional part-time workers to avoid the cost of required full-time benefits.

The Emergence of Predictive Scheduling Laws

In November 2014, the city of San Francisco passed two ordinances into law: Hours and Retention Protections for Formula Retail Employees; and Fair Scheduling and Treatment of Formula Retail Employees. In general, the ordinances require the following of employers:

• Before hiring new employees, offer additional work hours to qualified part-time employees who have performed similar work;
• Provide new employees with a “good faith” written estimate of the number of scheduled shifts per month and the days and hours of those shifts;
• Provide employees with their work schedules 2 weeks in advance, and provide “predictability pay” if schedules change with less than seven days’ advance notice;
• Provide pay for on-call shifts when the employee is not called into work, subject to exceptions;
• Provide part-time employees with the same starting hourly wage, access to time off, and eligibility for promotions as full-time employees who perform at the same level; and
• Provide for continued employment of all employees for a period of 90 days if the covered retail establishment changes ownership, subject to certain conditions.

The Expansion of Predictive Scheduling Laws

Since the passage of San Francisco’s predictive scheduling ordinances, San Jose, Seattle, and New York City have passed similar laws of their own. Oregon became the first state to enact such legislation with passage of the Fair Workweek Act in 2017, and it’s likely that other states, like New York, will follow suit.

Movement at the federal level has been more timid. H.R. 3071 (114th) Schedules That Work Act was introduced in the summer of 2015 but never made it out of committee. However the bill was reintroduced as H.R. 2942 (115th) in the summer of 2017, and it appears that the legislation may have new life as its policy case gains momentum across the country.

Predictive or Restrictive?

Of course, not everyone is onboard with predictive scheduling. Many employers refer to the legislation as “restrictive scheduling” because it restricts their ability to efficiently manage their workforce. They argue that employees choose to work at formula retail establishments because of the flexibility it offers. Employees not only know about variable scheduling in advance, they consider it an important factor in their employment decisions.

In addition to arguments of decreased efficiency and opportunity, employers also believe that the legislation unnecessarily complicates the relationship between managers and employees. They see predictive scheduling as disrupting the balance of employers and employees in both the near term and long term. Implementing new scheduling policies will likely be fraught with miscommunications and challenges initially, while the cost to manage the new policy (time and resources) will have to be offset by cutting back in other areas, likely employee perks.

In response to the pushback from businesses, several states have enacted or are currently considering “preemption bills” that prohibit local jurisdictions from enacting new predictive scheduling ordinances and other employment laws. Proponents of these bills are seeking to maintain a business friendly climate within the state by providing consistency in employment law across local jurisdictions.

Beyond the Law

Interestingly, predictive scheduling may not need new state or federal legislation to quickly expand. It’s no secret that the labor market has tightened over the past few years. Competition for talent has increased to the point where employers must be more creative in recruiting new employees. If predictive scheduling is important to job seekers, then many businesses may consider voluntarily incorporating its elements into their company policies as a way of attracting talent. Similarly, employers with multiple locations that are subject to different local ordinances may decide to implement predictive scheduling at all locations in order to simplify compliance and reduce liability.