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Legislature considers Predictive Scheduling

March 23, 2017

bullard-law2Bullard Law, Portland law firm

Employers in Oregon could be required to pay employees for up to four hours of unworked time if an employee’s shift is cancelled or shortened.  Additionally, some large employers may be required to engage in an “interactive process” with regard to employees’ scheduling concerns.  The law also extends anti-discrimination and anti-retaliation protections to discussions about scheduling.  Senate Bill 828 currently is being considered by the Senate Committee on Workforce and is co-sponsored by twenty State Senators and Representatives.

Oregon’s proposed law comes on the heels of Seattle’s Secure Scheduling ordinance, which was adopted last year and goes into effect on July 1, 2017.  The Seattle ordinance affected only large employers in select industries.  San Francisco and New York also have similar ordinances or laws.  This represents a growing national trend: over a dozen states or municipalities have considered this type of law in the past year.

Impacts for All Employers

All employers would be required to pay an employee a minimum of four hours of wages for any shift that is cancelled or shortened on less than 24 hours’ notice.  In addition, all employers would be required to comply with new recordkeeping obligations to demonstrate their compliance with the law.

The new law would be enforced by Oregon’s Bureau of Labor and Industries (BOLI), which would have authority to impose fines of up to $1,000 per violation.  BOLI’s enforcement powers would mirror those that it has for other state wage and hour laws.

Additionally, employees would be able to bring claims under ORS Chapter 659A for any adverse employment actions they claim constitute discrimination and/or retaliation for exercising rights under the new law.  If such claims are successful, a plaintiff could recover damages and attorney’s fees.

Impacts for Smaller Employers

Employees of smaller employers would have the right to request not to be scheduled during certain days, times, or locations.  This right would extend to requests for telecommuting, intermittent employment, and job sharing arrangements, among other things.  Employers would be permitted to request that the employee provide certain types of verification of the need for such requests.  However, employers would be prohibited from retaliating or discriminating against employees who make such requests.

Impacts for Large Employers in Certain Industries (LECIs)

LECIs would be subject to more onerous obligations under the new law.  LECIs include employers of over 100 employees total (across all related entities), including at least 25 employees in Oregon, in the retail, hospitality, and food services industries.

Employees of LECIs would have the right to make all of the types of requests described above.  In addition, unless the LECI identifies a bona fide business reason to deny such requests, it would be required to grant any verified request that is based on an employee’s: (1) health condition; (2) caregiving responsibilities; (3) commitment to another job; (4) changes to access to the workplace due to changes in their transportation or housing; or (5) participation in certain educational programs.

LECIs would be required to provide a good-faith estimate of each employee’s anticipated average number of hours each week and whether on-call work will be required.  The estimate would be required to be provided annually, or upon any significant change to work schedules.

LECIs also would be required to post work schedules 14 days in advance.  With certain exceptions, any changes would trigger additional obligations to compensate employees.  Changes to the work schedule would trigger an obligation to pay an additional hour of wages.  Any employee of an LECI whose shift is cancelled or shortened would be entitled to receive half of the wages that would have been earned.  LECIs would be prohibited from systematically “underscheduling” shifts.

LECIs would be required to pay overtime rates for hours worked without at least 10 hours between shifts.  Finally, LECIs also would be required to give current employees an opportunity to claim additional hours before hiring new employees.

Next Steps

Oregon employers should evaluate their existing workforce and scheduling practices and consider what would be the impacts of the proposed law on their company.  Oregon’s 2017 legislative session began on February 1, 2017, and will end on or before July 10, 2017.  Employers should examine whether they wish to communicate with the legislature about the impacts of the proposed law, either independently, through their industry groups, or through counsel.

Please contact us if you would like Bullard Law to analyze the impact of the proposed law on your organization.

  
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Discuss this article

Lauren March 27, 2017

I am the General Manager of a hotel and would like to provide feedback on the predictive scheduling bill(s) introduced.

Although we are a locally owned small business, we have a franchise license agreement with a large hotel chain which would classify us as a large business under this law. (They, in no way, have any say in how we conduct our scheduling or employment practices.)

We always post the employee schedules 3 to 4 weeks in advance, with the exception of the housekeeping and maintenance department. Housekeeping schedules are usually posted 1 week in advance because we never have an accurate idea of how many rooms will pick up (and need to be cleaned) until then. At a hotel such as ours, it is nearly impossible to accurately predict further out (unless at full capacity/sold out every day). Those associates hand in their time off requests before the new schedule is posted, all of which are approved and honored.

As for maintenance; these employees do not have a set schedule because they can come in whenever they want. This is their preference and we allow it in order to help meet their needs and retain those skilled workers since it permits them to work around their personal and family life. If we were required to post a schedule for them they would lose their freedom of flexibility and we would potentially lose our best workers.

Whenever we need extra housekeepers within the current week we ask them if they would like to pick up the hours by coming in an extra day. Most often they are happy to be offered the extra day(s) and quickly accept. They understand it is completely optional and there will be no consequences for them if they decline. One of the potential problems this law would impose is that when we ask them to work an extra day due to last minute pick-up, now we will have to have records proving that it was optional and not required of them to work an unscheduled day since there would be a schedule change within the two week window.

If our housekeepers come in to work and end up finishing early they always have the option of staying the duration of their full shift and help out with other tasks. Sometimes they do elect to leave early instead of staying the shift when they’ve finished cleaning all of their rooms. From my understanding, with this new law we would have to mandate that they stay at least four hours even if they want to leave earlier, in order for us to avoid the penalty. Otherwise we would have to have signed paperwork in place to prove that it was not due to the employer (and why there was a schedule change)?

One of our employees enjoys the flexibility of choosing how many hours (and days) she works (which helps her care for her young children and family life, etc.) and chooses to only work 4 hours or less per day.

Front desk agents frequently ask a coworker to trade shifts with them or relieve them early and make it up on other days. Sometimes this also results in that employee only having 8 or 9 hours between shifts per their request. They enjoy this flexibility we offer. However, because there’s a schedule change within the two week threshold, as well as less than ten hours between their shifts, we would now be opened up to wage claims if the paperwork isn’t in place to prove that it was at the employees’ request, etc. Also, when an employee requests off in advance for certain days but does not want to lose hours, they will often times want to have less than 10 hours between shifts in order to make it happen. This will result in less flexibility for our employees since their schedule change requests will no longer be approved if it’s within two weeks so we can avoid all of the record keeping and liability due to this new law. This is a paperwork and record-keeping nightmare! Anytime there is a schedule change or someone happens to leave early it will have to be properly documented and signed off on, which is dreadfully unnecessary.

If employers are required to offer current employees more hours before hiring on a new employee, it may result in more employees getting fired. For example; at my work we have some employees who we keep around only because they are ok at working certain shifts or days, and are available as fill-ins for when other employees get sick, however, they would definitely not be suitable for the position if they were full time or on at more demanding times, etc. Since they are not good enough at the job and we need someone more talented to cover the main days/times we would rather fire those underperforming employees and hire new ones in their place rather than offer them an increase in hours and the schedule opening that’s needed.

Everything I have stated previously is completely true and transparent. All of my employees would attest to this and agree wholeheartedly.

The flexibility our employees currently enjoy will be threatened if this bill passes!

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