Article

HR corner: Predictive scheduling trend gains momentum – Oregon becomes first state to guarantee advance notice of work schedule

August 21, 2017
| United States

by Marina A. Galatro, PHRca, SHRM-CPSenior HR Consultant, HR Partner

Allowing employees to have flexible schedules may have benefitted certain organizations, but hourly workers have been less thrilled with the practice. Varying schedules contribute to uncertainty about monthly income, impact receipt of public benefits, and create challenges for planning part-time work, schooling, and dependent care.

Campaigns to provide opportunities to work with advance schedules have been won or are underway; some are industry-specific, some not. San Francisco and San Jose, California and Seattle and SeaTac, Washington have ordinances in place. Several other cities (including Albuquerque and Washington, D.C.) as well as New Jersey are considering secure scheduling laws, which are also known as predictive scheduling laws. Now Oregon has taken action on the matter.

Oregon’s Fair Work Week Act.

Oregon lawmakers hope the passage of the Fair Work Week Act (SB 828) will eliminate challenges faced by retail and food industry employees who are subjected to unpredictable work schedules. The bill passed in the Oregon House by a 46 – 13 majority after it was approved by the Senate in June 2017.

Governor Kate Brown has approved the bill, making Oregon the first state with a law that guarantees employees advanced notice of working schedules and additional pay for last-minute schedule changes. It becomes effective July 2018.

As mentioned in the April 2017 issue of HR Focus (Opportunity to work and scheduling practice laws on the rise), a study of early career workers ages 26 to 32 showed that 41% of workers did not know their schedule more than a week in advance and 74% did not know how many hours they would work in a given week.

What does Oregon’s new law require?

The law requires retail, hospitality and food service companies with 500 or more employees worldwide to give employees seven days’ written notice of their schedules, including on-call shifts, starting in July 2018.

Employers must also give all new employees — at the time they are hired — a “good faith” estimate of the number of working hours they can expect. They must also provide a 10-hour break between shifts unless the employee requests that it be waived; the second shift after a reduced break will be paid at time and a half. Any last-minute schedule changes, such as the cancellation of a shift or the addition of unexpected hours, will result in extra pay.

Per the new law, the employer must post written work schedules in a conspicuous and accessible location, in English as well as any language the employer typically uses for employee communications. Also, the written work schedule must be provided to:

  • A new employee on or before the employee’s first day of work; or
  • An existing employee on the employee’s first day of work after a leave of absence.

The written work schedule will include all work shifts and on-call shifts for the work period. If the employer requests changes to the written work schedule after the advance notice, the employer must provide the employee with timely notice of the change in person, by telephone, email, a text messaging or any other accessible electronic or written format.

Notice and recordkeeping requirements.

National retailers and fast-food establishments have historically used on-call scheduling to help control labor costs.

The new law requires that the Commissioner of the Bureau of Labor and Industries provide a template Notice of Rights poster. For situations in which the employees work remotely or do not have a regular workplace or job site, the employer may provide the poster on an individual basis in a physical or electronic format that is reasonably conspicuous and accessible. Employers will be required to retain records that document compliance for three years.

How can employers prepare for continued legislation?

As the predictive scheduling trend gains momentum, it is important that employers understand the potential impacts and requirements this legislation will have on their business. Human resources professionals should stay on top of current and proposed laws to ensure their organization is meeting requirements of such laws. Overtime laws and on-call/reporting pay requirements demand special attention to avoid legal actions.

For example, a large retailer was ordered to pay $12 million to resolve a class-action lawsuit brought by an hourly employee who claimed they were shortchanged by the retailer’s use of on-call shift scheduling.1 The retailer’s policy allowed on-call employees to call in — rather than show up — to confirm they were still needed for their scheduled shift, but the plaintiffs complained this still compelled employees to reserve their time even when shifts were ultimately cancelled.

National retailers and fast-food establishments have historically used on-call scheduling to help control labor costs. But workers say that the daily unpredictability of on-call scheduling hinders their ability to earn a living, hold more than one job, arrange reliable child care or attend classes.

And so support for predictive scheduling laws continues to grow. Could your city or state be next?


Endnote

1. Mayra Casas v. Victoria’s Secret Stores LLC, case number 2:14-cv-06412