It is a situation some hourly employees know well. They report for their scheduled eight-hour shifts, but when business is slower than expected, they are sent home early or are told not to come in the next day. Alternatively, if their employer is busier than expected, they might get a call to report to work as soon as possible.
These scheduling practices can help employers reduce labor costs. But some workers’ rights advocates argue that these last minute scheduling changes make it difficult for hourly employees to predict their monthly income, schedule child-care, attend school, or work a second job. To address these issues within their state, New York lawmakers have introduced a bill that aims to regulate how and when employers can alter their employees’ work schedules.
The bill—which was introduced late last year in the New York State Assembly and later cross-filed in the New York Senate—would require employers in the retail, cleaning or food service industry to notify their employees of their work schedules at least 14 days in advance. Then, if an employer reduces or increases an employee’s hours less than 24 hours before a scheduled shift, the employer would be required to pay the affected employee one hour of normal pay for each altered or cancelled shift, a penalty known as “predictability pay.” However, the employer would not have to pay this penalty when the shift change is caused by the “unforeseen unavailability of a retail, food service or cleaning employee previously scheduled to work that shift.”
The bill also addresses situations where employees are “on call.” If the employer requires employees to contact the employer less than 24 hours before a shift to find out if they must report to the shift, the employer must pay the affected employees for one hour of work. In situations where an employee actually reports to work and the employer shortens the employee’s shift, the employer must pay that employee for four hours of work or the amount of hours for which the employee was originally scheduled, whichever would be fewer.
Fair scheduling legislation—as this type of legislation is commonly called—has also gained national attention. In 2015, Senator Elizabeth Warren (D-Mass.) introduced a similar bill, which would also require employers to provide certain hourly employees with their schedules at least 14 days in advance. Warren’s bill would impose penalties for any cancellations or scheduling changes made within 24 hours of the scheduled shift. However, the bill appears to be going nowhere in Congress.
Even as federal legislation stalls, local governments have moved forward to adopt similar worker-scheduling requirements. In 2014, the San Francisco Board of Supervisors passed a fair scheduling ordinance that regulates the scheduling practices of certain types of chain retailers with multiple locations worldwide. The San Francisco ordinance requires those covered employers to pay predictability pay for changes to an employee’s schedule and to release each employee’s work schedule at least 14 days in advance. The District of Columbia City Council is also currently considering so-called fair scheduling legislation.
Legislators in other states have attempted to pass similar legislation. Earlier this year, Maryland legislators introduced a bill that would have required employers to give employees 21 days notice of their schedule. This bill would have applied to all employees, not just those in the retail, cleaning, and food services industries. Ultimately, the Maryland bill was unsuccessful and died in committee.
Some advocacy groups find this type of legislation to be unnecessary government regulation of the workplace. For example, the National Retail Federation (NRF), a trade association that represents the interests of retailers and chain businesses, argues that scheduling regulation reduces workplace flexibility and could prevent employers from scheduling enough employees. The NRF contends that this could lead to longer wait times and inferior customer service.
Even though governments are pursuing fair scheduling legislation, change may come from the industry itself. Within the last year, several large retailers have reportedly announced that they would phase out “on-call” scheduling.
The popular clothing store Gap reportedly has completely phased out on-call scheduling. However, it has not implemented scheduling policies that provide for the same amount of notice or predictability pay as the New York bill. Abercrombie & Fitch, another clothing retailer, apparently has stopped using on-call scheduling at its New York locations and plans to expand the ban to the rest of its U.S. locations.
It is still unclear if the New York bill will become law. In January 2016, the Senate and Assembly bills were referred to committee, but no further action has been taken. Once passing the Senate and Assembly, the bill would require approval by New York Governor Andrew Cuomo. Governor Cuomo has advocated for workers’ rights issues in the past, showing his support for a $15.00 minimum wage in the state, but it remains to be seen if he would sign off on the scheduling bill.