NEWS & ANALYSIS
Scheduling protection laws for retail workers: A nice-sounding idea that can be a nightmare for employers
EDITOR’S NOTE: The following is adapted from a guest post by Bob that was originally published on January 4, 2017, in RetailDIVE.
Many cities are considering or enacting so-called “scheduling protection laws,” which are intended to provide stability and predictability for retail workers. Certainly one can empathize with a single parent of young children who is unexpectedly told that she has to report for an eight-hour shift – in two hours. It’s likely that the next two hours will be spent in a scramble to find a family member, a friend, a neighbor, or a warm body who can sit with and feed the kids. And if the parent says no to working on such short notice, she risks losing her job.
San Francisco and Seattle have enacted scheduling protection laws.The San Francisco ordinance applies to retailers with 20 or more San Francisco employees and that have at least 40 establishments worldwide. The Seattle ordinance applies to fast food and retail establishments with 500 or more employees, and to full-service restaurants that have 500 or more employees and at least 40 establishments.
Although the retail industry opposed these laws, at least the San Francisco and Seattle ordinances are limited to relatively large employers who might have other resources if an employee can’t drop everything and come in when his co-worker unexpectedly calls in sick.
But New York City is considering a package of bills that could be truly problematic for retail employers.
For starters, unlike the San Francisco and Seattle ordinances, New York City’s proposal covers retail businesses with five or more employees, including full-time, part-time, and temporary employees. Averages are based on the number of weekly employees who worked in the preceding year. That means smaller retailers who regularly operate with fewer than five employees, but who ramp up employment temporarily during the holiday season, will have to determine whether these seasonal additions raise their average to five or above. Chain retailers must count employees at all locations.
“Is it a 'requirement' when a supervisor tells the employee that it would be 'really helpful' if she came to work? We don't know.
The proposal also bans retailers from using on-call scheduling and restricts them from modifying employee schedules with less than 72 hours’ notice. Although the practice of on-call scheduling has received much scrutiny recently, its elimination is likely to have minimal impact on retailers: The same analytic and scheduling software tools used in on-call scheduling will be used to project scheduling needs. To the extent that projections are less precise, retailers are expected to err on the side of running leaner shifts.
The more problematic issue is the proposed 72-hour notice rule, which would prevent retailers from cancelling scheduled hours, or requiring employees to work, on less than 72 hours’ notice. As proposed, there are exceptions allowing employees (1) to mutually agree to swap shifts, or (2) to provide written consent to working with less than 72 hours’ notice. But because employees will remain free to call in absent with less than 72 hours’ notice, the notice rule is likely to cause significant difficulties for retail employers.
Complicating matters even more, there is no guidance within the proposal defining when a “request” becomes a “requirement.” For example, is it a “requirement” when a supervisor tells the employee that it would be “really helpful” if she came to work? We don’t know. Because the minimum penalty is $500 per violation, retail employers are likely to leave the shift unfilled unless they can get the employee’s written consent to work on short notice.
The NYC proposal also requires retailers to give employees at least 20 working hours during any 14-day period, with an offset for any hours the employee elects to take as paid or unpaid leave during the period. This requirement will ultimately benefit some retail employees at the expense of others: Part-time or flex workers who commit to working a certain number of hours on a quarterly or other basis will be eliminated. Retailers are likely to carry fewer employees on their payrolls, which will result in even less flexibility in covering unexpected absences.
The proposal is unclear as to what constitutes “leave” for offsetting the 20-hour requirement. Is an unexpected absence the same as an unpaid leave? Usually, employment laws treat absences and leaves as distinct concepts. In this context, clarity is needed because retailers will undoubtedly be faced with call-offs that will put workers in danger of missing the 20-hour requirement.
“Under the proposals being considered, retailers who offer in-store food or beverage service will have to evaluate whether those services are 'fast-food establishments.' If they are, then there may be different requirements in a single store for retail and fast food employees.
Retailers will additionally be required to post physical (yes, “paper”) copies of work schedules and to provide previous and current schedules to employees on request. There is a $300 penalty for failing to do so. If enacted, this provision will require many retailers who have long since moved to entirely electronic scheduling to revive the antiquated practice of creating and posting a physical schedule.
These are New York City’s retail-specific proposals, but they are not the only proposals that may affect retailers. The City is also considering proposals about scheduling and work requirements for fast-food employees. The fast-food proposals are not the same as the requirements for retail employees, but retailers who offer in-store food or beverage service will have to evaluate whether those services are “fast-food establishments.” If they are, then retailers may have to operate under different requirements in a single store for their retail and fast-food employees.
New York City is also considering laws that would apply to all types of employers in the city, including employee rights to flexible work arrangements, and temporary, emergency adjustments to work schedules. If enacted, these laws will create new compliance requirements that retailers will have to consider and implement alongside the retail-specific proposals.
Scheduling protection laws come at a time when the retail industry is in a state of upheaval. Gains are overwhelmingly occurring online, and in-store traffic has rapidly declined. Many brick-and-mortar retailers are already investing to integrate their customers’ physical and online shopping activity, and as the in-store experience evolves, merchants will continue to evaluate in-store staffing needs. The decreased scheduling flexibility, coupled with the increased compliance burdens and legal risks created by proposals such as the ones being considered by New York City, may compel these changes even sooner.
NOTEWORTHY NUMBERS
SOURCE: U.S. Equal Employment Opportunity Commission.
RETAILER'S RECAP
All Trump, all the time. We have more links than normal this edition because of the election and what we expect to be a dramatic change in focus. Starting with most recent and working our way back to the morning after the election, we have Anjanette Cabrera and Stephen Stecker on just about all of the changes employers can expect from the Trump Administration; Maureen Knight and Steve Moore, co-chairs of our Class and Collective Action Litigation Practice Group, on the impact of the Trump Administration on class and collective actions; Jill Stricklin on former President Obama’s labor and employment law legacy; whether President Trump’s nominee for Secretary of Labor, Andrew Puzder (confirmation hearing currently scheduled for February 2), really wants to replace human workers with robots; more, but with a labor law orientation, from David Phippen on the Trump election and Puzder nomination; some general background on Mr. Puzder; post-election analysis by our practice group heads and thought leaders on the impact of President Trump’s election; and some “instant” analysis posted the morning after the election.
Starting this week, our blog, Employment & Labor Insider, will have short updates on any labor and employment-related actions taken by President Trump or his administration. The first installments are here and here.
Updates from California and New York. A lot has been going on recently at the federal level, but states have been keeping busy, too. Richard Bromley and Kacy Coble have an update on the new California state legislation that is most significant to employers, and Anjie Cabrera and Stephen Stecker have the latest from New York.
Are you using the new “smart” I-9s? You’d better be. A new “smart” I-9 form was released in November, and use of the new form is mandatory as of January 22. Elizabeth Joiner has the information you need in this Immigration Dispatch.
And while you’re at it, make sure your required posters are up. Stephanie Underwood provides a handy recap of the federal requirements in this blog post. (But check applicable state law, too.)
ConstangyTV is on the air! We are delighted to be offering ConstangyTV’s Close-Up on Workplace Law, a once-a-month video series covering various labor and employment related topics, with host Leigh Tyson, a partner in our Atlanta Office. In our first show, which came out right after our last edition of the Retailer, Leigh interviewed Cara Crotty, head of our Affirmative Action/OFCCP Compliance Practice group about the evolving definition of “sex discrimination” under federal law. Then, in November, Leigh interviewed Gary Wheeler about workplace holiday parties. (Yeah, we know it’s only January, but you’ll be way ahead for the 2017 holiday season!) And in December, Leigh interviewed “drug guy” Tommy Eden about marijuana in the workplace, an increasingly hot topic as more states are legalizing medical and recreational use of marijuana. You can subscribe to our YouTube channel and see all the shows here.
Class waivers, “rounding” time, and e-discovery. The January 2017 edition of Class Action Outlook (linked above, but here it is again) has excellent information on developments in this interesting (and expensive) area of the law. Kim Seten discusses the Supreme Court’s decision to review whether class waivers in arbitration agreements violate the National Labor Relations Act; Sean Kramer talks about a very employer-friendly decision from the U.S. Court of Appeals for the Ninth Circuit on “rounding” of employees’ time under the Fair Labor Standards Act and California wage and hour law; and Susan Bassford Wilson has the third in her series on electronic discovery.
Virtual union for retail workers. An attorney in Miami has come up with the “so-crazy-it-just-might-work” idea of organizing retail workers via an online union. David Phippen has the story here.
Buh-bye to the overtime rule? As our readers know, the Obama Administration’s overtime rule was preliminarily enjoined in late November, right before it was scheduled to take effect on December 1. The U.S. Department of Labor has appealed, but it’s unlikely that the Trump Administration will pursue the appeal. In the extremely unlikely event that you missed all of this, here is an in-depth analysis by Jim Coleman and Ellen Kearns, co-chairs of our Wage and Hour Practice group, and a more recent update.
And here is everything else you may consider noteworthy. Blog posts on the proposed Enforcement Guidance on Workplace Harassment recently issued by the Equal Employment Opportunity Commission (what’s wrong with it here, what’s right with it here); Kentucky becomes a right-to-work state; “pay transparency” is still the law, by Jon Yarbrough; why good documentation is important, and what makes it good; and an update on whether LGBT discrimination violates Title VII. (Oral argument in the Christiansen case was held on January 20.)
