Shift changes and predictive scheduling laws
While federal law is generally silent on the issue of shift changes and shift scheduling, more and more states and municipalities are enacting predictive scheduling laws to give shift workers more flexibility and schedule security.
Federal law remains mostly silent
The Fair Labor Standards Act (FLSA) generally does not require employers to give advance notice to employees before making changes to shift schedules. There are federal laws that govern the hours and times of day that 14- and 15-year-old workers may be assigned; however, there are no federal requirements for employers to give notice of shift changes to employees who are 16 years of age or older1.
States and municipalities step in to fill the silence
Several states and municipalities have enacted predictive scheduling laws that require advance notice and/or employee consent before employers can make changes to shift schedules.
The City of San Francisco established its Formula Retail Employee Rights Ordinance that requires covered employers to pay shift workers a premium of 1 to 4 hours of pay at the shift worker’s regular hourly rate for any schedule changes with less than 7 days’ notice. The premium is dependent on the amount of notice given to the worker prior to the shift change and the length of the shift.
The City of Los Angeles enacted a similar ordinance that requires employers to pay shift workers predictability pay if the worker agrees to the employer’s request for shift schedule changes. The Retail Fair Workweek Ordinance requires retail employers with 300 or more workers to give workers a good faith estimate of their work schedules. Employers are required to give this schedule estimate at the time of hire for new workers, and within 10 days of request by an existing worker. Workers are entitled to one additional hour of pay at their regular rate for each schedule change.
New York City’s Fair Workweek Law requires employers of fast-food workers to give two weeks’ notice for each worker’s schedule, with premium pay owed to the worker if the employer cancels or makes any changes to the schedule within that two-week period. Likewise, Philadelphia’s predictive scheduling ordinance requires employers of retail, fast food, and hospitality workers to give workers two weeks’ notice of their schedules; if the employers make changes within those two weeks, then predictability pay is owed to the affected worker.
Chicago’s Fair Workweek Ordinance requires employers in covered industries to provide workers with predictable work schedules and compensation for any changes. Workers are entitled to advance notice of their work schedules at least 2 weeks prior to the shift start date. If employers make last minute shift changes within those 2 weeks, workers are owed one hour of additional pay for each impacted shift. If employers make last minute changes 24 hours prior to the shift start, workers are entitled to 50% of their pay for any lost hours, or one hour of additional pay for any shift changes with no loss of hours.
Certain municipalities require longer notice periods. Washington D.C.’s Hours and Scheduling Act requires employers to give shift workers in fast food and retail industries 3 weeks’ notice of their schedules. Employers are penalized for making last minute changes to the schedules and are also required to pay workers 4 hours of predictability pay for shift cancellations occurring 24 hours before the start of the shift.
Oregon is the only state with statewide predictive scheduling laws. Covered employers in retail, hospitality and food services industries are required to provide workers with two weeks’ notice of each shift schedule. This schedule must include all work shifts and on-call shifts for the work period. If an employer makes changes to the schedule within the two-week period with no loss of hours or assignment of additional hours, workers are entitled to an additional one hour pay at their regular rate. If the last-minute shift change results in loss of hours, workers are entitled to an additional one-half times their regular rate for each hour lost.
Bottom line for employers
Employers operating in states and municipalities with predictive scheduling laws must be extra mindful when creating shift schedules and keep in mind the various penalties attached for last minute shift changes. Existing predictive scheduling laws usually require at least two weeks’ notice for any shift changes (three weeks in Washington D.C.). Employers who operate in states and municipalities that do not have predictive scheduling laws should still be mindful of any future legislation that may affect them. It may also be good practice to give workers two weeks’ notice of any shift changes to allow shift workers more flexibility in their work-life balance.
Key points
- Predictive scheduling laws are becoming more and more popular to prevent employers from making last minute changes to shift workers’ schedules.
- Depending on the jurisdiction, employers may be liable for penalty pay for any last-minute shift changes.
129 C.F.R. § 570.35, see also US DOL FLSA FAQ
