Scheduling employees correctly is important in ensuring smooth operations at the workplace. Not only must you confirm that employees are available, but you must also comply with local and federal scheduling rules. You must keep scheduling laws into consideration to protect you from potential fees and penalties in the future.
Scheduling laws exist to help employees plan their schedules, stay well-rested, and keep their budgets in check. Some scheduling laws include how often you can require an employee to work. Many employees work closing shifts and then are expected to work the next day, and this is typically called a “Clopen” (close/open) shift. In some places, this practice is not allowed, as it does not allow the employee ample resting time.
Federal Scheduling Laws
There are no current federal laws regulating employee downtime between shifts. Additionally, there aren’t regulations to require employers to give their employees schedules in advance. Therefore, employers have free reign to schedule their employees however they please. They may schedule employees as early as a day in advance if they please.
Here are some different compliant methods of scheduling employers may use:
- Just-in-Time Scheduling: This is when an employer may text or call an employee to come into work. This is typically used in retail, food service, restaurant, and hospitality industries.
- Flex Scheduling: This method is usually set up a week or more in advance. Employees may work when they prefer and may leave the premises if they have enough coverage.
- Fixed Scheduling: Employers use this when they want to give employees schedules well in advance. They can share or change schedules and have time to plan out their days.
Predictive Scheduling Laws
Although there aren’t federal scheduling laws in place, some states have implemented scheduling laws to protect employees. These laws are called Predictive Scheduling Laws and they help employees with their schedules and time management. It requires employers to give employees adequate notice of their schedules, such as providing notice days to weeks in advance. This rule allows employees to have ample time to prepare for their shifts and meet their personal needs, such as secondary jobs, school, or other activities.
Who Currently Has Predictive Scheduling Laws?
As of now, there are some state and local scheduling laws that require employers to pay a penalty when they don’t give scheduled employees sufficient advance notice. Additionally, there are laws pertaining to “Clopening” shifts. As stated above, Clopen shifts mean that the employee works the closing shift and then the opening shift the next morning. If employees are scheduled to work back-to-back shifts, without enough off-duty hours in between, employers may have to pay penalties.
Here are states and cities who have Predictive Scheduling Laws:
- San Francisco, CA
- Emeryville, CA
- Chicago, IL
- New York City, NY
- Philadelphia, PA
- Seattle, WA
If your workplace is in one of the cities or states above, you will want to consider these scheduling laws when creating schedules.
Law Breakdowns (By City and State)
San Francisco, CA
San Francisco passed the Formula Retail Employee Rights Ordinances (FRERO) in 2014. The goal is to regulate employee hours, retention, and scheduling. This law covers employees under retail establishments as well as janitorial workers and security contractors. There are many rules, but one important takeaway is that employers must provide schedules two weeks in advance. Employers may post schedules electronically as long as the staff is given access.
If not followed correctly, employers may face penalties. For example, an employer who gives less than seven days’ notice must pay an employee a premium of 1 to 4 hours of pay at their regular rate. Additionally, if an employee is on call, the employer must pay an employee a premium of 2 to 4 hours of pay at their regular rate. Thankfully for employers, there are some exemptions so they can avoid penalties. For instance, an employer may not have to pay penalties if the employee trades shifts with another employee, or if another employee failed to report to work or was sent home.
Emeryville passed the Fair Workweek Ordinance in 2017; however, it wasn’t fully engaged until 2018. Employers may publish schedules electronically or physically as long as employees have access. Schedules may get published more than 14 days in advance, but no less. If an employer fails to publish a schedule, they may have to pay Predictability Pay. Employees may earn pay at 1.5X their normal pay if schedules with two shifts are within 11 hours of each other.
The Chicago Fair Workweek Ordinance passed in 2019 in hopes to provide employees with fair scheduling practices. This was done to prevent workers from missing opportunities with their families, health, education, and other obligations. This ordinance covers building services, healthcare providers, hotels, manufacturers, and food service workers. Currently, employers must give employees 10 days’ notice for scheduled shifts; however, that will rise to 14 days’ notice in 2022.
If employers fail to meet the 10-day (or 14-day) deadline, employers must pay employees with one hour of Predictability Pay for each adjusted shift. Employees may decline shifts that start less than 10 hours after their previous shift without penalty. If an employee works a shift that is less than 10 hours before their previous shift, they will receive 1.25X of their regular rate of pay during their second shift.
New York City, NY
The New York Fair Workweek package has been effective since 2017, and this is mainly for fast food and retail employees. The law prohibits employers from scheduling retail employees less than 72 hours before their shifts. Fast food employers cannot schedule employees fewer than 11 hours in advance. If a fast-food employee doesn’t have more than 11 hours’ notice, that employer must pay the employee $100.00.
Additionally, employers of fast-food industries must give employees their estimated schedules upon hiring. This allows the employee to know what to expect in the future. Fast food employers in New York must give their employees 14 days’ notice of their schedules. If not, they’ll have to pay a scheduled premium.
Oregon employers who fall under the retail, hospitality, or food services industry must follow Predictive Scheduling laws. This only applies to employers with at least 500 employees or more. First, an employer must give an employee their schedule in writing at least 14 days in advance (as of July 1, 2020). An employer must pay a penalty if they change employee shifts without advance notice. However, if an employee asks to work additional shifts, the employer does not have to pay the penalty.
Employers who add more work to shifts, change the date, or schedule additional work before the 14-day notice, will pay the employee one hour of work at the regular rate of pay plus any normal wages they earned. Employers may have to pay employees 1.5X their regular rate of pay for each scheduled hour that employees don’t work for many reasons. First, employers who subtract hours from their shifts, change the start times or end times, or cancel shifts may pay penalties. Lastly, employers who ask employees not to perform when they’re on call will also pay 1.5X the employee’s normal rate.
Employees in Oregon have the right to rest between shifts. Employers cannot schedule employees during the first 10 hours following a previous shift. Additionally, they may not schedule an employee 10 hours after an on-call shift that spanned over two calendar days.
Philadelphia passed the Fair Workweek Employment Standards in 2018. This includes reasonable notice of schedules, rest time between shifts, and opportunities for additional hours. The Act affects employers in retail, hospitality, and foodservice industries who have at least 250 employees and 30 locations worldwide.
Upon hiring, employers must give employees the idea of their normal shift schedules. Starting in January 2021, employers must give employees at least 14-days’ notice for scheduled shifts. If the schedule is created or changed before 14 days, the employer must pay the employee one hour of predictability pay.
Employees are also allowed a rest period of 9 hours between two shifts. If the employee works during this time, the worker may earn $40 for each shift.
Seattle passed the Seattle Secure Scheduling Ordinance in 2017. This affects retail, food services, and restaurant establishments. Those in the retail and foodservice industry must have at least 500 employees. Those in the full-service restaurant industry with 500 or more employees and 40 or more locations must follow this law. Employers must estimate their worker’s hours upon hiring. After that, an employee may request specific shift schedules to accommodate their other activities (such as school, caregiving, etc.). Also, they must give employees their schedules with at least 14 days’ notice.
Employers cannot schedule employees a “Clopen” shift. They may only do so if the employee has at least 10 hours between the shifts. However, an employee can consent to a Clopening shift if desired. If an employee has a break between shifts that is less than 10 hours, they must earn 1.5X of their normal pay. There are several other ways an employer must compensate an employee. You can read more here.
How Much Time Should You Give Employees Between Shifts?
If you work in a state or city that has Predictive Scheduling laws, you’ll want to follow those closely. Give employees ample notice of their shifts and give them time to rest in between. If your state or city does not regulate scheduling, it’s still a great idea to give your employees breaks between their shifts and give them time to prepare for their shifts. Employees need time to rest and recharge for the day so they can show up to their next shift ready to rock and roll.
In summer 2021, many employees went on strike because of the lack of fair working conditions. They are overworked, don’t have breaks, and claim they’re working in “sweatshop conditions”. That’s not a good look for employers and this absolutely does not help with employee retention.
Next time you schedule your employees, think about how much time you’re expecting each employee to work. Do they work too many hours? Are they working a Clopening shift and need some time to rest? Be mindful so your employees can stay happy and healthy.
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