Predictive Scheduling Laws in 2023: What Employers Need to Know
Charlette has over 10 years of experience in accounting and finance and 2 years of partnering with HR leaders on freelance projects. She uses this extensive experience to answer your questions about payroll.
Jennifer Soper is an HR Specialist and staff writer for Fit Small Business, with over 15 years of experience in accounting, payroll, and human resources.
Predictive scheduling is the process of giving employees ample notice of their work schedule so they can plan around working hours. Early on, predictive scheduling laws only applied to workers in certain industries, like restaurants and retail. But as time has gone on and additional work schedule laws have been passed, more industries are included in these schedule requirement laws. Employers may also face penalties for failing to comply with these laws, so understanding them is important.
Currently, only a small handful of states have laws centered around predictive scheduling.
Federal Regulations
Although there is currently no federal law requiring employers to provide employees notice of work schedules, predictive scheduling compliance is becoming more popular. Businesses of all sizes should be ready to comply with any federal law mandating that they provide employees with notice of their work schedule at least one week in advance. Beginning this process now will help companies avoid the headache of rapid changes and increased costs.
In The News:
Recently, Congress introduced a bill called the Schedules That Work Act, which would allow employees to “request changes to their work schedule without fear of retaliation and ensure that employers consider these requests.”
State Regulations
Currently, there is one state, Oregon, with full state predictive scheduling regulations that apply to every city. Additionally, Vermont and New Hampshire have specific regulations in place around flexible working hours for employees. Click through the accordion below to learn more about each state.
Oregon’s predictive scheduling law affects employers in the retail, hospitality, and foodservice industries with at least 500 employees. But only employees whose primary job duties involve retail, hospitality, or food services are covered; other employees and salaried employees who are exempt from minimum wage are not covered. So, even if your company falls under the general umbrella of retail, hospitality, and food service, not all of your employees may be subject to this law.
Good Faith Estimate
When managing current employees and upon hiring a new employee, if an employee is subject to Oregon’s law, the employer must provide a good faith estimate of the employee’s work schedule that includes average monthly hours and an explanation of an on-call or standby list, if the employer uses one. Employers are not required to use a standby list, but if they do, they must make sure their employees understand the list is voluntary. Once employees join the list, they may remove themselves from it at any time without penalty.
On an ongoing basis, employers must:
- Provide employees with at least two weeks’ notice of their work schedule
- Post the work schedule in a conspicuous and accessible location, visible to all employees
- Include all work and on-call shifts on the schedule
Mandatory Rest Periods
The Oregon law provides for mandatory rest periods between shifts. Employees are entitled to rest during the first 10 hours following the end of a previous calendar day’s work, or the first 10 hours following the end of a work shift that spanned two calendar days. Eligible employees must be compensated at one and a half times their regular hourly rate for each hour the employee works during what would otherwise be a 10-hour rest period.
Schedule Changes
In Oregon, if an employer requests a change to the work schedule after notice has been given, an employee may decline the request. Additionally, any employer-requested change to an already posted work schedule will result in additional compensation to affected employees.
Wage Requirements
According to Oregon’s predictive scheduling law, an employee must receive wages for the time worked plus one hour at their regular rate of pay if the employer:
- Adds at least half an hour to an employee’s current shift
- Changes the date or start and end times of a shift but keeps the same amount of hours
- Schedules an employee for additional shifts
An employee must also be compensated for 50% of their regular rate of pay for each scheduled hour if the employer:
- Subtracts hours from a current shift
- Changes a shift that reduces the employee’s hours
- Cancels a shift entirely
- Does not utilize an on-call employee
While Vermont does not currently have a full-fledged predictive scheduling law, it does have a flexible working arrangement law in place. This law states that employees have the right to request a flexible work schedule—and employers must discuss and consider, in good faith, these requests at least twice per calendar year.
A flexible schedule may include:
- Changes in the number of days worked
- Changes in the number of hours worked
- Changes in the time the employee arrives at work
- Changes in the time the employee leaves work
- Work from home
- Job sharing
This law only creates a basis for discussion. It does not change the legal rights of employees and employers to create, terminate, or modify flexible working arrangements.
New Hampshire has also adopted a flexible working arrangement law that strictly prohibits employers from retaliating against employees who request a flexible work schedule. This does not mean that the employer must abide by the schedule change request—it’s quite the opposite, as an employer can deny the request. However, it does protect both the employer and employee from adverse reactions to these requests.
Active Bills in Legislation
The following states have predictive scheduling laws currently in an active bill state (although not yet placed into law at the time of this publication):
Additionally, there is one new local law that is currently pending the mayor’s signature. Once signed, this law would be put into effect on April 1, 2023:
Prohibitions
Several states have gone in the opposite direction—explicitly forbidding the enactment of predictive scheduling laws. These include:
These laws state that local city governments are prohibited from creating laws around scheduling, minimum wage changes, and additional employment matters.
Local Regulations
Some states have predictive scheduling laws in place but only in certain cities and municipalities. The regulations are similar for each but have some distinctions you will need to pay attention to if your business operates in these areas.
Select your city or municipality from the accordion below to learn more.
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*NOTE: Effective November 2023, employers must provide their employees with advanced notice of their work schedules (at least 2 weeks in advance). Employees have the right to decline any schedule not provided at least 14 days in advance. Additionally, employers must provide written notice of any change to an employee’s schedule within 24 hours of the schedule change.
For more in-depth detail on the Berkeley predictive scheduling law, review the city’s Fair Workweek Ordinance.
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For more in-depth detail on the Emeryville predictive scheduling law, review the city’s Fair Workweek Ordinance.
Businesses subject to the law | Businesses must provide | Penalty |
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For more detailed information on the San Francisco law, review the Formula Retail Employee Rights Ordinances.
Businesses subject to the law | Businesses should know that | Penalties |
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For more in-depth detail on the San Jose predictive scheduling law, review the city’s Fair Workweek Ordinance.
Businesses subject to the law | Businesses must provide | Penalty |
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To find out more about the Chicago law, check out the city’s Fair Workweek Ordinance.
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Review the New York City Administrative Code Fair Work Practices for additional information.
Businesses subject to the law | Businesses must provide | Penalty |
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Review Philadelphia’s Fair Workweek Employment Standards for more information.
Businesses subject to the law | Businesses must provide | Penalties |
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To learn more about the law in Seattle, review the Seattle Secure Scheduling Ordinance.
If a work schedule law takes effect in your community, you can generally expect:
- Every employee must receive advanced notice of their work schedule, usually one to two weeks in advance
- Upon hire, companies must provide employees with an estimate of their work schedule
- Restriction on “clopening” and close-in-time work shifts
- Document retention, including approved work schedules and work schedule estimates
Increasingly included in these laws is predictability pay—a penalty (one to four hours additional pay) on the employer for changing an employee’s schedule within a certain period, usually less than one week before their shift. The payment can vary depending on where your company is located and will depend on how much notice you gave the employee of the change.
Predictive Scheduling Law Compliance
Compliance with predictive scheduling laws presents unique challenges, especially for larger companies. Those businesses with locations in more than one city or state may have to abide by different sets of work schedule laws. This creates confusion and the real possibility of an innocent but costly violation.
Here are some key steps you can take if you operate in an area with predictive scheduling laws.
Step 1: Determine if your company is a covered employer. The first thing to do is to determine whether your company is subject to the work schedule law. Every employment law will define a covered employer. Some work schedule laws only apply to restaurant and retail businesses, while others apply more broadly. If your industry is not listed, the regulation may not apply to you.
Step 2: Create policies. If your business is a covered employer, you need to create policies to adhere to the new law. You may want to create template forms for advanced scheduling and scheduling changes. On these forms, you will want to make sure there is a reminder to employees and managers of the potential ramifications of making schedule changes.
Step 3: Conduct training. For managers who schedule employees, you want to ensure they receive detailed training on the predictive scheduling law in your location. They will be responsible for scheduling employees and making changes so they need to know where their boundaries are under the law.
Step 4: Audit your processes. Once established, you will want to routinely audit your processes for all of your business locations. This will help ensure that your company remains compliant. Running regular audits will also help you uncover areas for improvement, allowing you to make changes as employment laws change.
Step 5: Review related regulations. Predictive scheduling laws do not exist in a vacuum. Implementing new procedures to comply with this law may overlap with other processes for hiring and employee discipline. For example, failing to delineate the predictability pay on an employee’s wage statement could result in a labor code violation. This encroachment may require you to rethink your policies and make adjustments.
Step 6: Automate schedules. You don’t have to do everything manually. Through the use of employee scheduling software, like Homebase, your company can automate your employee’s schedules, ensuring compliance with your area’s predictive scheduling laws.
Benefits of Predictive Scheduling for Your Company
Predictive scheduling offers benefits to both employers and employees, helping clearly define work schedules, remain compliant with the law, and maintain a full staff.
- Employer Benefits: While it might seem like there are no upsides for businesses, let’s look at the bigger picture. When employees are happy, they are more engaged and efficient. When employees have a better grasp on their schedule, they have less stress and worry about when they’re working and whether they will have enough hours. Reduced stress makes employees better able to focus on their tasks at hand and more loyal to their employer, reducing turnover and costs for the business.
- Employee Benefits: For many years, a common complaint from employees working in retail and restaurant settings has been unreliable hours from their employer and not knowing when or how much they may be scheduled to work in any given week.
Work schedule laws have clear benefits for employees. They mandate that employees will know their schedules well in advance so that they can plan social activities and manage other life responsibilities. In some cases, if an employer violates the law and makes a schedule change, the employee will receive additional pay.
Bottom Line
Even if your community has not yet passed a predictive scheduling law, you can prepare your business by implementing employee scheduling software that will keep your company compliant when the time comes. In the meantime, it saves you time and frustration having to constantly review and rework schedules. We recommend scheduling software so you can schedule your employees well in advance and comply with any predictive scheduling laws.
