By: Grace Madlinger for the When I Work Blog, Photo by Eric Rothermel on Unsplash
This also means big changes for business owners—including a fundamental shift in the way many schedule and manage employees. Here’s what you need to know when on-call scheduling is no longer on the table.
What is “fair workweek”?
Whether called “fair workweek,” “advanced scheduling,” or “secure scheduling,” these terms all refer to new city and state regulations that require employers to make and share employee schedules in advance. Many (if not most) of these laws also mandate a minimum of days’ notice and additional pay if employers change employee schedules at the last minute.
When did fair workweek start?
San Francisco was the first city in the United States to pass a fair workweek law in 2014, with many localities following quickly after. But sweeping changes started happening in 2015 when nine state attorneys general put several large retailers on notice for their on-call scheduling practices. By 2017, companies like Gap, Target, and Disney had all stopped using on-call scheduling. Today, even more businesses are moving away from on-call scheduling due to mounting court cases and increased scheduling regulation.
Why the change?
The basics of a good schedule are having the right resources in the right place at the right time. On-call scheduling may seem like the best way to match your staff to customer demand—and give yourself some wiggle room should things change. However, only 30% of schedule changes are actually attributed to customer traffic.
Just-in-time scheduling may grant business owners some flexibility, but it doesn’t work so well for the people who make your business run. In reality, just-in-time scheduling costs your employees and your business even more money than it saves. Unpredictable scheduling causes employees to experience more work-related stress, more difficult home lives, and more financial instability. All a recipe for unengaged and unproductive employees.
In comparison, employees who receive their schedules in advance are less likely to miss shifts and are typically more productive during their shifts. Research shows that when employees have predictive schedules, sales also go up too, even up to 7%.
Which employees do fair workweek laws apply to?
It can differ from city to city and state to state, but most fair workweek laws apply to part-time hourly workers in hospitality, retail, or food service industries. In some places, your business must have a minimum number of locations and employees to qualify. Many of these laws are aimed at businesses with multiple locations and a large workforce (typically 50 employees or more), but could still apply to smaller businesses in certain cases as well.
Does this mean I can never change employee schedules again?
Making changes to schedules after they’re posted isn’t impossible, but come with a price. In San Francisco, if you change an employee’s schedule with less than seven days’ notice, you owe employees one to four hours of additional pay, depending on the amount of notice given and the length of their shift. If an employee agrees to work different hours than they were scheduled to in Chicago, they’re owed one hour of “predictability pay.” They’re also eligible to receive half of their scheduled pay if their employer cuts their hours.
How will this affect my business?
Depending on your business and how you currently schedule employees, fair workweek laws could cause a ripple—or a tidal wave. If you already schedule employees in advance, you may have to make some small adjustments, but no drastic changes overall. However, if you currently work in a just-in-time or on-call schedule, your entire scheduling model will have to change to comply with fair workweek regulations.
Some businesses argue that fair workweek laws put too much burden on employers since not complying results in hefty fines and complying often means investing in new scheduling solutions or administrative tools. Although new tools come at a cost, the cost of disengaged employees and employee turnover can be much higher, costing employers up to 50% of each employees’ annual salary to replace them.
What will I need to change about my scheduling?
Every fair workweek law is a little different, but most include the same scheduling requirements:
- Employers must issue employee schedules in advance (up to 21 days in advance in some cases)
- Employers must provide electronic copies of employee schedules
- Employees shouldn’t be scheduled for a closing shift and opening shift within the same 10-hour window
- Employers must give long-term employees first claim to additional hours before seasonal employees and must provide written “good faith estimates” of predicted working hours for all new employees
- Employers must provide additional pay if employees’ scheduled hours change without advanced consent or prior notice
Again, the impact of these changes will depend on how you currently schedule employees. If you print and post weekly schedules on a bulletin board, complying with fair workweek laws will take more effort than if you already schedule employees online or with an app.
Do I need to rethink how I’m creating my schedule now?
Even if your city or state doesn’t have fair workweek laws, more and more localities are embracing them every year. This may mean investing in a different or more robust software platform that can support advanced scheduling. To start, you’ll need a way to account for fair workweek requirements and a way for employees to easily check and confirm their schedules online.
How much will fair workweek scheduling tools cost?
Many scheduling software platforms charge per employee per month, while others charge per site or business location per month. Depending on your number of employees, it could cost anywhere from $1.50 to $3 per employee per month.
Why pay for something you can do for free? What you may be saving in your budget is costing your business even more: your time. Over half of employers report spending at least two hours each week working on employee schedules, and others say they’ve spent up to twelve. That’s more than a day of work spent on one task, every week. That’s valuable time you could be using to grow your business instead.
Preparing for Fair Workweek
When will new fair workweek regulations go into effect?
Many fair workweek regulations are already in effect or will be in the next year. Between 2014 and today, more than five major cities and two states have passed fair workweek or advanced scheduling laws. Oregon’s state-wide fair workweek law went into effect in 2018. The most recent regulation in Chicago was passed in July 2019 and takes effect July 2020, the same year as Philadelphia’s fair workweek law. Several other major cities already have their own fair workweek regulations underway.
Which cities and states have fair workweek regulations?
So far, Oregon and New Hampshire are the only states to pass fair workweek laws. Fair workweek laws have passed in the following cities and localities:
- San Jose, CA
- San Francisco, CA
- Emeryville, CA
- Seattle, WA
- New York City, NY
- Philadelphia, PA
- Chicago, IL
Keep in mind, these are only the places that have actually passed fair workweek regulations. Los Angeles is considering a fair workweek law, along with Boston and the state of Illinois.
Even if you don’t see your city or state on this list, fair workweek laws aren’t going anywhere. Track proposed fair workweek ordinances in your area by setting up a Google alert for your “location + fair workweek law”. Stay updated with new ordinances being proposed at your city council level, and follow employment law sites like JD Supra.
How can I start preparing for fair workweek laws?
Fair workweek laws are becoming an inevitability, but changing your scheduling system doesn’t have to happen overnight. There a few initial steps you can take to get your business and your employees ready for the change.
One place to begin: start looking into scheduling solutions that will give employees the right notifications for schedule updates and an easy way to check their schedules online. Release employee schedules earlier so that your team is used to receiving their schedules in advance. Practice working through the kinks that come up.
Complying With Fair Workweek Regulations
How do I comply with new regulations?
Currently, there are no federal fair workweek laws. To make sure you’re following the right requirements for your location, be sure to check your state and city ordinances or get in touch with your local chamber of commerce. If you do need to adjust your business practices to comply, you’ll need to rethink how you create your workplace schedule and put the infrastructure and resources you need in place to share employee schedules in advance.
How will I get my employees to comply?
Chances are, your employees will be happy to receive their schedules in advance. They’ll have monetary incentives, more predictable income, and a better work-life balance – which contributes to better employee engagement and productivity. And employees can still tweak their schedules or work more shifts than they’re assigned, like volunteering for “clopening” shifts. Under fair workweek laws, employers can’t make employees work closing and opening shifts less than 10 hours apart unless their employees specifically request or agree to work. If employees do agree to “clopen” during their required rest period, employers may pay time-and-a-half for the hours.
Will I be fined if I do not comply?
Yes—violating fair workweek laws often come with hefty fines and penalties for business owners. Employers in New York could incur fines of up to $75 for each change to the schedule. In Oregon, employers have to pay employees for half of the hours not worked if they schedule a shift and then cancel it, as well as give employees one additional hour of pay when hours are added to their schedules without notice. In Chicago, violating the city’s new fair workweek ordinance could cost employers up to $500 for every violation.
What if my business still requires some form of on-call scheduling?
Some businesses will always require someone to be on-call. Depending on the size of your team, you can still fulfill fair workweek scheduling requirements and have a plan in case of emergencies.
Have a list in place of employees who have more flexible schedules and can come in on short notice. Put only a few employees on the “on-call” list and give the rest of your team predictable hours. Have a primary go-to, a second person, and then a backup for that person, etc. Then, set up an on-call order and alternate that order for each shift so that your go-to employee isn’t always the same person. You’ll need to give employees extra pay when they work a volunteer shift. But, at least you’ll know someone will always be there to give an extra hand.
Fair workweek laws don’t have to spell disaster for business owners. Having a pre-planned, predictable schedule can lead to more overall productivity, more engaged employees, and less employee turnover. Whether fair workweek laws just passed in your city or new ordinances are on the way, moving your team to a predictable schedule now can make work better for everyone.
Fair workweek laws: fair, or not so fair? For many business owners, complying with new “advanced scheduling” requirements may seem like more of a hassle than they are helpful. But fair workweek compliance benefits both employers and employees—and can lead to a better workplace environment for everyone. With more fair workweek legislation on the way, we’ve rounded up our top fair workweek compliance need-to-knows for business owners everywhere. (Just joining this series? Get started with part one, FAQs About Fair Workweek.)
It’s here to stay
On-call and just-in-time scheduling aren’t the status quo anymore. Fair workweek or “predictive scheduling” is part of a larger growing trend in labor and employment law. A recent report by the Economic Policy Institute found:
“In the same way that campaigns for higher minimum wages, paid sick days, and paid family and medical leave have highlighted the need to update labor standards to reflect today’s economy, we hope and expect that lawmakers in more jurisdictions will also recognize that stable, predictable, and adequate work hours are essential to ensuring that workers, families, businesses, and communities can thrive.”
More than a handful of cities (and states) have incorporated fair workweek laws so far, with even more on the way in the future. While some employers have protested that fair workweek laws put too great a burden on businesses, fair workweek laws only seem to be gaining momentum. Even if your city doesn’t have a formal fair workweek law, complying with fair workweek practices now will go a long way in preparing for the future.
It’s more than just handing out a schedule…
Fair workweek laws aren’t as simple as cutting out on-call or just-in-time schedules. Compliance can require changes that affect your entire business. To comply with fair workweek laws, you’ll need to create employee schedules in advance and take new requirements like employee “rest periods” into account.
Complying with fair workweek laws typically includes:
- Providing schedules in advance, taking employee scheduling requests into consideration, and allowing employees to make changes to the schedule
- Getting rid of unpredictable on-call or just-in-time scheduling
- Providing employees a “good faith estimate” of the hours they can expect to work
- Paying employees a higher rate if their work schedules are changed or their hours are reduced
- Providing easy (often digital) access to employee schedules
- Scheduling employee shifts in accordance with employee “rest periods”
…and it could lead to a better company culture
The saying is true: happy employees are productive employees. But employee happiness isn’t just nurtured by higher salaries or raises. Company culture attracts and retains employees more than a boost in pay.
Fair workweek compliance creates a better workplace environment and a better company culture for everyone. With predictable schedules, employees finally have a sense of ownership over their time.
A company culture that prioritizes work-life balance goes hand-in-hand with engaged employees. Up to 89% of workers at companies that support employee well-being are more likely to recommend their company as a good place to work. Employees with greater work-life balance are also twice as happy, more productive, and show greater loyalty to their employers.
It may require more work upfront
Complying with fair workweek laws won’t happen in a few days or even a few weeks. It’ll take some getting used to, and some extra effort upfront from both employers and employees. To get ready for fair workweek laws, start by auditing your current scheduling practices. See what you need to change now and determine what steps you’ll need to take to comply. Practice creating schedules and sharing them with employees weeks in advance. Sit down with your employees to catch up on their availability and the hours they’d like to work. Then, put together a sample “good faith estimate” for employees to see how much money they can expect to make.
Compliance isn’t just about what business owners can do. Employees will have questions, and you won’t always be around to answer them. Instead, train your managers and supervisors to help them identify and enforce fair workweek practices on the job. If your business currently relies on on-call scheduling, have a volunteer on-call list in place. Make sure employees know what is and isn’t allowed should they be asked to work a shift. Update everyone on employees’ rights under fair workweek laws and host an open Q&A session to talk through concerns.
Not complying will cost you
The alternative? Not complying comes at a steep price—with hefty fines. Under Chicago’s new fair workweek law, employers must pay “not less than $300 or more than $500” for each offense. In New York, changing employee schedules with less than 14 days’ notice can cost employers anywhere from $10 to $75 for each change. Employers in Seattle must pay employees “one-half times their scheduled hourly rate” if they cut employees’ scheduled hours.
Just like overtime, all of these small changes add up fast. Any money you believe on-call scheduling saves your business will quickly be absorbed by fines. As more employers embrace fair workweek laws, non-compliance will also start racking up reputational damages. Several large retailers have already been called out in various lawsuits, facing public scrutiny and online exposes. Ultimately, almost all have banned on-call scheduling.
It’s a little different everywhere you go
There aren’t any federal fair workweek laws, and very few have been passed on the state level. Instead, most fair workweek laws have been passed by individual cities. While fair workweek laws all have many of the same key requirements, each has its own specific requirements, exceptions, and limitations that vary city-to-city and state-to-state.
This can make compliance even trickier for employers. A good rule of thumb: don’t assume that what applies to one business owner in one city exactly applies to you in yours. Look up the specific ordinances for your city and talk to other business owners in your area with an hourly workforce in a similar industry. If in doubt, consult an employment and labor law attorney who can help you get the specifics right.
There are tools to help
The complexity of new scheduling laws makes it difficult to update schedules on a whiteboard or share them by hand. To comply with the ins and outs of fair workweek laws, scheduling software can help business owners match their city’s fair workweek regulations with employee availability.
You’ll also need a way to input mandatory rest periods, shift breaks, and keep track of employee overtime. Your employees will likely be required to access their schedules digitally and provide consent that they’ve received their schedules—all of which is hard to track with pen and paper. Many scheduling solutions allow employers to account for these restrictions automatically, saving employers from facing fines for missing a small detail.
It may require new worker accommodations
Most business owners are familiar with worker accommodations, like meals, breaks, and scheduling limits for minors. But fair workweek laws come with a new set of requirements. Employees can no longer work “clopening” shifts—shifts that end and start within 10 hours of each other. Under some fair workweek laws, employees must take a rest period of nine hours between shifts.
Employees also have the right to request changes to their schedules without being penalized for declining to work a shift they previously weren’t scheduled to. For example, in order to “call-in” employees, Oregon requires employers to have a volunteer “standby” list of employees willing to work shifts at the last moment, and have proof in writing that they’ve already agreed to do so.
It’s the right thing to do
Fair workweek compliance may cause a few headaches along the way, but ultimately creates a foundation for a strong company culture where everyone is respected and empowered at work. Adopting fair workweek practices isn’t just being compliant with the law. It’s showing employees that you believe advanced scheduling, predictable income, and living a balanced life are all things employers and employees alike deserve—and things we can all work towards together.
Advanced scheduling doesn’t just apply to retail and food services. With new fair workweek laws covering employees in building services, health care, and manufacturing, it’s safe to say fair workweek compliance is a matter of “when,” not “if” for all business owners. The legal specifics can vary from city to state, but there are still things every employer can do to prepare. Use this checklist to get your business fair workweek-ready.
Just joining this series? Catch up with part one, FAQs About Fair Workweek and part two, What You Need to Know About Fair Workweek Compliance.
Confirm which fair workweek laws apply to your locality
Fair workweek laws have many of the same features in common but can differ in each city and state. Be sure to look up the fair workweek laws for your area to find the specific regulations you’re expected to comply with.
Make sure you know which laws apply to your business’ size and industry
Just like laws vary by location, they also vary depending on your business’ industry, size, and how many locations you have. If you’re in the retail or foodservice industry, chances are that fair workweek laws do apply to you. However, they may not if your workforce has a smaller number of employees. Read the fine print to know which fair workweek laws apply to your specific situation.
Know when you’re expected to comply
Some cities enacted fair workweek legislation as early as 2014. Others just passed laws this year, but won’t actually be enforced until 2020. If fair workweek regulations are coming to your city, find out the deadline to comply to give your business enough time to prepare.
Stay aware of penalties and fines
Even one or two schedule changes can cost employers—big-time—under fair workweek laws. While the goal of fair workweek laws is predictable scheduling, last-minute changes are still inevitable. Check the fair workweek pay premiums and penalties for your location so you’re aware of what schedule changes can cost, and can budget for pay premiums in an emergency.
Get your business ready
Decide which tools you’ll need
Fair workweek laws mean a change in scheduling for a lot of business owners—and many don’t have the scheduling tools or infrastructure in place to immediately abide by the law’s requirements. Take a look at how you currently build and share employee schedules, and see if there are any holes or additional resources you’ll need in order to be fair workweek compliant.
Do a few trial runs to see what works best
You may need to try a few different tools or approaches to see which scheduling apps and practices work for your business and employees. Practice making and giving out schedules in advance now and see how things go. If you know when fair workweek laws are coming your way, you’re already one step ahead—use this time to narrow down what works for you and your team.
Audit your current hiring practices
Looking to hire seasonal help each year? Most fair workweek laws require that any available hours or shifts are offered to current employees first before new hires. This may impact how many shifts will actually be available for new hires to work, and whether or not your team can spread the extra hours amongst themselves.
Make sure you have a way to save records
Record, record, record. Records are a crucial part of fair workweek compliance, with employers being required to keep copies of schedules, good faith estimates, and employees’ consent to their hours or availability. Make sure you have digital copies of everything, that you have backups, and that those backups have backups.
Get your team prepared
Train managers on the rules
Your team may not know all the ins and outs of employment laws, but your managers and supervisors will be on the frontline to enforce them and save your team from potential violations. Make sure your managers are up to speed on the fair workweek requirements for your area, and have a clear explanation of the do’s and don’ts that they can reference in a pinch.
Educate employees on their rights
Just like managers, make sure your employees know what’s required of them under fair workweek regulations. Get them used to checking their schedules early and consenting in writing to new schedules or schedule changes, and that they know what changes mean. If employees are still interested in working more hours or being “on-call”, now’s the time to get that from them in writing as well.
Put together a good faith estimate of hours for workers
“Good faith estimates” require that employers share with employees how many hours they can expect to work “in good faith.” This helps employees have an idea of what their schedules will look like in the future, and how much pay they can expect to take home.
Reconfirm employees availability
Good faith estimate conversations are also a good opportunity to check in with employees about their availability. They may be more or less flexible, have recent life changes, or other updates you need to know about before building a schedule for your business.
Ask for employee input on their preferred schedule
Simply ask your employees—what would your schedule look like if you had the chance to make it? You may be surprised at what employees say. Some may want more hours or be willing to work less popular shifts because they prefer to work earlier in the morning or late at night. With their ideal preferences in mind, you can build a schedule that employees will be satisfied with—and make fewer changes.
Cut out “clopening” shifts
One of the biggest fair workweek changes? Fair workweek compliance means no more “clopening”. Most fair workweek laws require employees to have a rest period of at least 9 hours between shifts. Stop scheduling any employees to work closing shifts and then open right afterward, or vice versa. Even if your city doesn’t currently have a fair workweek law, make clopening a no-go moving forward.
Make schedules with minimal changes expected
Your schedule isn’t just a nice-to-have any more, it’s a must-have. Treat your schedule as concrete and as one of the last things that can change. Use scheduling software to account for as many variables as possible, including fair workweek regulations and employee availability and preferences,
Share digital copies at least two weeks in advance
Send out copies of the employee schedule two weeks (or earlier depending on where your business is located). Use a digital service or app so employees are able to check their schedules at-will.
Document employee schedule consent
Get written consent that employees have received their schedules in advance and consent to work them. Then, keep your documentation somewhere you can easily find in case a conflict arises.
Get your backup plan in place
Add schedule change and clopening premiums to current payroll
Life happens. Your schedule won’t always go perfectly as planned, and you are going to have to pay employees extra pay for working different shifts than scheduled or for coming in when they weren’t scheduled to work. Add these premiums to your payroll now and make sure they go to employees come payday, so your business doesn’t end up paying a penalty for not issuing fair workweek pay under the new laws.
Put together a backup schedule of “on-call” volunteers
Some businesses will always need to have someone on-call, in some way. While on-call and just-in-time scheduling are illegal under fair workweek laws, employees can still volunteer to work if they want additional hours or have a more flexible schedule. Build a roster of who you can call and alternate that roster so the same people aren’t always “on-call”.
Keep it up!
Fair workweek scheduling is going to be tough at first, especially if you’re converting from on-call or just-in-time scheduling practices. It’s going to mean changes—which also means some growing pains. Remember: fair workweek laws are meant to improve scheduling for everyone and encourage more humane scheduling practices. While it may take some getting used to, it’s the right thing to do for your business and your employees.
*Please note: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
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