Many of us are familiar with the lyrics of Dolly Parton: “Workin’ 9 to 5, what a way to make a livin’…” A predictable work schedule, however, is not so universal in the retail and food services businesses. For many employers in these industries, work schedules are often issued on short notice as a result of fluctuating customer demands. Laws that require more predictability in scheduling, according to employee advocates, promote economic equality by allowing employees to have more stability in planning budgets and arranging for child care, schooling and a second job. A recent ordinance passed in Seattle, which goes into effect July 1, 2017, aims to balance these two interests by establishing secure scheduling requirements for covered retail and food-service establishments.
The ordinance covers retail and food services establishments (defined broadly to include, for example, caterers, mobile food services, bars, limited-service restaurants, cafeterias, buffets, and snack and nonalcoholic beverage bars) that employ 500 or more employees worldwide. For full-service restaurants, there must also be at least 40 locations worldwide.
The ordinance applies to nonexempt employees (full-time, part-time and temporary employees) who work at least 50 percent of their work hours inside the Seattle city limits.
- Good-faith estimated hours. Employers must give new hires “a written good-faith estimate of the employee’s work schedule” at the time of hire. This estimate must include the “median” number of total weekly hours and any on-call shifts. Current employees must be provided with a similar estimate on an annual basis or otherwise, as needed.
- Interactive process regarding work schedules. Employees have the right to request not to be scheduled for shifts during certain times or at certain locations and the right to identify preferences for the hours and location of work. The employer is required to engage in an interactive process with the employee to discuss these requests and must provide a written explanation if it denies an employee’s request that is based on a “major life event” (includes issues with an employee’s transportation or housing, a serious health condition, child care responsibilities, enrollment in training or education programs, or a second job).
- Right to rest between shifts. Unless the employee consents, the employer may not schedule employees to work sooner than 10 hours after the end of the previous calendar day’s work shift, thereby eliminating “clopening” shifts (when an employee works the closing shift and the next opening shift). Also, the employer may not require the employee to work sooner than 10 hours following the end of a work shift that spanned two calendar days. Hours worked during this 10-hour rest period must be paid at one-and-one-half times the employee’s scheduled rate of pay. An employee compensated for work during the 10-hour rest period will not receive additional compensation for employer-requested changes to work schedules that are discussed below.
- Advance notice of work schedule. The employer is required to provide employees with a written work schedule at least 14 calendar days before the first day of the work schedule. The schedule must be posted in a conspicuous location, include on-call shifts, and be in English and in the primary languages of the employees in that location.
- Notice of work schedule changes. If an employer requests a change to a work schedule, it must provide the employee with timely notice in person or by telephone, email, text or other similar means. However, the employee may decline to work any hours not included in the existing work schedule. If the employee initiates the request, he or she should provide notice consistent with the employer’s procedures. When the employee is unable to work due to an emergency or major life event, the employer may ask, but cannot require, the employee to find replacement coverage. If the employee does not have a protected reason for the schedule change, the employer may require the employee to find a replacement.
- Compensation for employer-requested work schedule changes. If the employer requests additional hours of work or changes the date or the start or end time of a work shift (with no loss of hours), the employer must pay the employee an extra hour of pay in addition to the wages earned for the work performed. If the scheduling changes result in a loss of hours, the employer must pay the employee time-and-a-half for each scheduled hour that was cancelled or reduced or if the employee is not needed for an on-call shift. The ordinance includes several exceptions to these requirements, including when the employees mutually agree to swap their shifts, the employees accept additional hours to cover shifts made available because other employees could not work their schedules, work hours are subtracted for disciplinary reasons, or a business is closed due to a natural disaster or because of a loss of power or other utility service.
- Access to hours for current employees. Additional hours of work must be offered to current employees before new employees are hired. Employers must post a written notice describing the available hours for at least three consecutive days before hiring new employees. Exceptions to this requirement do not require employers to offer additional hours that would entitle employees to overtime pay.
- Record keeping. The ordinance imposes new requirements mandating that employers keep written documentation demonstrating compliance with the ordinance for a period of three years. A failure to keep proper records will result in a rebuttable presumption that the employer violated the ordinance for the periods and for each employee for whom records were not properly retained.
The ordinance may be enforced (1) by the Seattle Office of Civil Rights, which has the authority to investigate, make conclusions of fact and law, and levy penalties and fines against employers as well as damages in favor of employees; and (2) by employees, who have a private right of action to bring their own lawsuits against employers for alleged violations of the ordinance. Employees can recover unpaid wages, liquidated damages (twice the amount of economic damages), attorney’s fees, costs and penalties of up to $5,000 for retaliation.
Covered employers should examine their policies and procedures for compliance with the ordinance and train their managers to handle staffing needs accordingly. Employers outside Seattle should stay alert to these developments, as similar legislation has been introduced in other jurisdictions and the trend is expected to continue. For more information, please contact BakerHostetler.