July 6, 2020
With fair workweek legislation continuing to roll out across America, scheduling tools could be the answer both employers and employees are looking for.
The ‘fair workweek’ law (also referred to as ‘predictive scheduling’) was rolled out in Chicago last week, requiring employers to give employees advance notice of their schedules – or pay a premium for last-minute changes.
Similar to legislation already passed in other parts of the country (including Oregon, San Francisco and New York), the aim of the fair workweek is to provide vulnerable shift workers (typically in the restaurant and retail trade) with more predictable and stable schedules, and compensate them when they’re not so predictable.
The requirements vary between jurisdictions (in itself a talking point), but in general there are five common elements:
- Employers must give employees a minimum advanced notice of their schedules (for example in Chicago employees must be notified at least 10 days in advance).
- If an employer changes a worker’s schedule with less notice than required, it must pay the worker a penalty known as ‘predictability pay’ – which may increase the closer to the shift date the change is made.
- Employees have the ‘right to rest’ – that is, to decline work hours that start less than a minimum number of hours after the end of a shift (colloquially referred to as ‘clopening’, where an employee works both the close and open shift). Documented consent is required if an employee wishes to forego this right.
- Additional work hours must be offered to existing part-time employees before hiring a new employee.
- Employers are expected to keep detailed records to serve as proof of their compliance.
Provisions exist so that employees can continue to trade shifts or initiate schedule changes (without the employer incurring a penalty).
Why the changes?
Too often, shift workers are the subject of erratic working schedules and are often subjected to last minute shift cancellations, shortened shift durations and short notice for shifts. This makes it difficult for employees to plan their weeks – everything from anticipated income to child care requirements or even to accept shifts with other employers. In some cases, these last minute changes also result in financial penalties for the employee (consider the case where a worker has arranged a babysitter for a 10 hour shift and paid for a bus ticket to/from their employment site only to be told on arrival their shift has been cut and they are no longer required).
The impact to businesses
In theory these new requirements are a positive step for the industries’ employees, aiming to address the unpredictable nature of ‘shift employment’ and providing employees with better ability to manage their lives outside of work.
However in practice complying with these new requirements may seem like a world of effort – particularly at a time where staffing requirements are so unknown due to COVID-19. Becoming familiar with the new requirements, changing scheduling processes, training managers and keeping detailed records are all additional overheads businesses must cope with to ensure compliance – all of which are likely to come at a cost to be passed onto the end consumer.
Of additional concern to larger businesses is the disparity between jurisdictions, with differing requirements for everything from who’s impacted to penalty rates and the advanced notice period required – an administrative nightmare!
What businesses should do
The reason why many businesses find it so hard to predict their schedules may simply boil down to a lack of technology. These businesses, who may have previously relied on pen and paper or Excel spreadsheets for their scheduling needs, will now look to electronic scheduling tools to keep track of schedules, notify employees, and better comply with local labor regulations.
We may be preaching to the converted here but there are numerous benefits to using such tools, both in ensuring fair workweek compliance and in general scheduling and employee management efficiency.
- Forecasting models can make advanced scheduling easy by using past data to anticipate future staffing needs.
- Employees can set their availability and unavailability upfront, giving them better ability to manage responsibilities outside of their jobs and providing managers with better visibility. It also reduces the impact of looking for replacements when an employee calls in sick – no need to ring around or contact employees on their day off.
- Schedule templates can be created and saved, expediting future scheduling and reducing time spent by managers on schedule management.
With these advantages, reliable schedules can be issued weeks in advance – minimising the need for unanticipated scheduling changes and thus reducing the likelihood of predictability pay.
- Employees can be instantly notified when schedules are published or amended through push notifications or in-app messages – no need to send numerous texts or e-mails or for employees to come into the office.
- Up-to-date schedules can be accessed by employees 24/7 online, although managers may still wish to make printed copies available in staff rooms.
- Chat messaging functions enable one-to-one or group communications – no more searching for phone numbers or e-mail addresses.
Electronic tools generally have audit trails in-built for record keeping purposes, but other forms of record keeping may include:
- Recording when notification was provided for each shift / schedule, as well as when the notification was viewed by the employee.
- Tracking start and end times of shifts, thereby also calculating the rest period between shifts.
- Documenting employee consent (i.e. for clopening or change of schedule) through in-app messaging or formal questions/disclaimers built into the app.
- Workers can be empowered to swap shifts or pick up additional shift opportunities that suit them by enabling shift swap functions. Managers can choose whether swaps require approval or if employees are free to swap and drop as they please.
Whilst there is an administration jungle ahead, the hope is that employers will also benefit from these new rules, by virtue of
- Reduction in stress levels across both workers and managers
- Happier and more productive employees
- Reduced employee retention
Fair workweek laws continue to be rolled out across the country, so get informed and get compliant (as the consequences of non-compliance can be significant).