If you have never heard of "predictive scheduling," read on. The concept, which refers to the legal requirement of providing employees advance notice of their work schedules (and any changes to those schedules), has picked up steam in several cities and states, including California. The cities of San Francisco, Seattle, New York, and now the state of Oregon, all have passed their own predictive scheduling laws, and Los Angeles and the state of California could be next.

Predictive scheduling laws generally require employers to provide employees a minimum amount of notice for their work schedule and any changes to an employee's scheduled shift. These laws were designed to make it costly for employers to place employees in the position where they do not know from day to day whether they will be working. Proponents of these laws cite to the many challenges faced by employees with uncertain work schedules.

For example, San Francisco's predictive scheduling ordinance, passed in 2015, requires retail employers in the city with 20 or more employees to provide new employees with a "good faith" written estimate of the minimum number of scheduled shifts per month, and the days and hours of those shifts. Employees must also receive their schedules at least 2 weeks in advance. And, if the employer changes an employee's schedule with less than 7 days' notice, the employer must pay the employee a penalty of an additional 1 to 4 hours of pay, depending on the amount of notice provided and the length of the shift. On-call shifts - defined as a shift where the employee confirms their shift less than 24 hours in advance of the shift - are still permitted, but the employer must provide 2 to 4 hours of additional pay if the employee is not called into work. Additionally, on-call shifts must be included in the biweekly schedules provided by the employer. The San Francisco ordinance can be found here ( LINK ).

Similarly, New York City's predictive scheduling ordinance requires all retail employers in the city to provide employees with a written work schedule at least 72 hours before the first shift on the schedule. In contrast to the San Francisco ordinance however, the law expressly prohibits scheduling retail employees for "any on-call shift," or requiring an employee to work with fewer than 72 hours' notice, unless the employee consents in writing. New York City's predictive scheduling law can be found here ( LINK ).

While California has yet to enact a predictive scheduling law, a bill known as the Fair Scheduling Act of 2015 was introduced in the California Assembly in early 2015. The law would apply to "food and general retail" employers (e.g., grocery store, department store, etc.) with 500 or more California-based employees and 10 or more locations throughout the country. Those employers would be required to provide two weeks' notice of schedules. Similar to the San Francisco and New York City ordinances, employers covered by that law would have had to provide additional pay for schedule changes made with less than 7 days' notice. The Act died in the state Assembly in February 2016, but the blueprint remains for legislators to resurrect the Act in the future. The proposed legislation can be found here ( LINK ).

Several other states have introduced proposed predictive scheduling laws in the past few years, including Massachusetts, Illinois, Michigan, and New Jersey. With predictive scheduling legislation catching on across the country and in several California cities, we wanted our employer clients  to be aware of this important legislative trend requiring advance notice of scheduled shifts and shift changes.

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com .

Sincerely,

Richard S. Rosenberg
Justin T. Youngs
Ballard Rosenberg Golper & Savitt, LLP