Predictive Scheduling

Unpredictable schedules and late notice for assigned shifts make it difficult for hourly restaurant workers to find childcare, go to school, or schedule transportation. As a result, four cities and one state in the U.S. have passed predictive scheduling laws that make scheduling practices fairer for workers. An additional 12 states are also currently debating their own versions of these types of laws.

These laws are fundamentally changing the way restaurants can hire and schedule their employees. Additionally, as this trend continues to grow, they pose challenges even for restaurants that operate in regions without laws on the books. With high industry-wide turnover rates and tough competition for labor, these restaurants may face stiff competition from national brands that offer workers these scheduling benefits. Here is a guide to the laws that are already on the books and tips for how restaurants can handle them.

San Francisco: Formula Retail Employee Rights

The following laws apply to “Formula Retail Establishments,” or chain stores, with at least 40 establishments worldwide and 20 or more employees in San Francisco, as well as janitorial and security contractors.

• Good Faith Estimate: Employers must provide new employees with written notice of the median hours they can expect to work, including on-call shifts.
• Access to Hours: Additional hours must be offered to existing employees before hiring new employees.
• Right to Request: New and existing employees can set limitations and make changes to work schedule availability, as well as request not to be scheduled.
• Right to Rest: Employers cannot schedule employees to work shifts separated by less than 10 hours unless an employee requests it or gives consent.
• Advanced Notice: Work schedules must be provided to employees 14 days before shifts start. Schedules must be provided in English and the primary language of the employee.
• Work Schedule Changes: Employer-initiated changes must occur in person or in a phone call, email, text message, or other accessible electronic or written format.
• Record Keeping: Employers must keep records for three years to show compliance.
• Protection from Retaliation: Employees have the right to decline any hours not included in the originally posted schedule without fear of retaliation.

Seattle: Secure Scheduling

The guidelines in this ordinance apply to retail and foodservice establishments with 500 or more employees worldwide, including integrated enterprises and franchise networks. It also impacts full-service restaurants with more than 500 employees and 40 or more full-service locations worldwide.

• Good Faith Estimate: Employers must provide new employees with written notice of the median hours they can expect to work, including on-call shifts.
• Access to Hours: Additional hours must be offered to qualified existing employees before hiring new employees.
• Right to Request: New and existing employees can set limitations and make changes to work schedule availability, as well as request not to be scheduled.
• Right to Rest: Employers cannot schedule employees to work shifts separated by less than 10 hours unless an employee requests it or gives consent. Time-and-a-half pay must be provided for the difference when scheduling outside this guideline.
• Advanced Notice: Work schedules must be provided to employees 14 days before a shifts start.
• Work Schedule Changes: Employer-initiated changes must occur in person or in a phone call, email, text message, or other accessible electronic or written format. If an employer adds hours to or subtracts hours from the employee’s schedule after it is posted, the employer must pay the employee additional compensation, though there are some exceptions.
• Record Keeping: Employers must keep records for three years to show compliance.
• Protection from Retaliation: Employees have the right to decline any hours not included in the originally posted schedule without fear of retaliation.
• Equal Starting Pay: Employers must provide part-time employees with the same starting rate of hourly pay, access to time off, and eligibility for promotions, as provided to full-time employees.

New York City: Fair Work Week

This legislative package includes five separate bills that protect the city’s more than 65,000 fast food and retail workers from unfavorable scheduling practices.

• Access to Hours: Employers must give current employees the option to take new shifts before hiring any new employees. This will give existing employees the option to move from part-time to full-time employment or give them the additional hours they want.
• Stop “Clopening”: Employees must have 11 hours off between shifts, preventing short turnarounds between closing and opening shifts. If employees work sooner than 11 hours after a previous shift, employers must pay the worker $100.
• Advanced Notice: Work schedules must be provided to employees 14 days before shifts start.
• Work Schedule Changes: If a schedule changes within two weeks of a shift, the employer must pay the employee $10 to $75 depending on the situation.
• Donations: Employers must allow employees to deduct part of their salary for donation to a nonprofit.
• Post Notices: Fast food employers must post a copy of these notices in a conspicuous place. Notices must be posted in English and in any other language spoken by at least 5 percent of employees at that job site.
• Keep Records: Employers must save three years of data, including offered hours, schedule changes, time off requests, shift swap requests, shift change requests, shift cancellations, and more.

Oregon: Fair Work Week

Oregon is the first state to pass predictive scheduling legislation. These laws affect foodservice establishments with more than 500 employees worldwide, including both chain and franchise locations.

• Predictability: Employers must provide new employees with notice of the median hours per month they can expect to work, and all schedules must be posted at least seven days in advance. On July 1, 2020, this will change to 14 days in advance.
• “Clopening” Ban: Employers must provide at least 10 hours between shifts unless an employee requests or consents to work otherwise. Employees that do so will earn time-and-a-half pay for all hours worked less than 10 hours after the previous shift.
• Path to additional hours: Employers are not required to pay for schedule changes initiated by employees. Employers can maintain a volunteer “standby list” of employees who are willing to work extra hours on short notice in the event of unexpected volume or employee absences.
• Schedule Modifications: Employees must be allowed to request schedule modifications at the time of hire and during employment, including additional hours or shifts and limitations in the employee’s work schedule availability. Employers must consider, but are not required to approve these changes.
• Premium Pay for Schedule Changes: If a schedule is changed after it is posted, employers must pay workers a premium for each change.

How to Prepare

Predictive scheduling laws vary widely by location, but there are general steps restaurants can take to prepare.

• If your restaurant operates in a region that has already enacted predicted scheduling legislation, review your current laws. Make sure you understand what is included in the legislation, which types and sizes of businesses it applies to, and when the laws take effect if they haven’t already. Then make a plan.
• If your state or city is debating predictive scheduling, review what is being proposed and make action plans to address any issues that might arise.
• If your restaurant doesn’t yet operate in a region with predictive scheduling, it doesn’t hurt to review the types of laws that are being passed. Consider implementing similar policies to stay ahead of legal changes or to improve job satisfaction for your employees.
• Find software that factors in predictive scheduling laws when it makes schedules. Some software, such as HotSchedules, also alerts managers when they are making changes to schedules that would be out of these guidelines and what the fine would be.