Predictive Scheduling: What Employers Need to Know

Employers are constantly faced with the challenges of rising labor costs. One tool in many employers’ tool belts are scheduling changes, such as moving to a six-hour shift, instead of an eight-hour shift, or moving individuals to a four-day work week. However, when employers are making scheduling changes they must be careful that they don’t run afoul of predictive scheduling laws.

Predictive Scheduling — also known as “Fair Workweek” — laws require employers provide employees with their schedules in advance. Predictive scheduling can help employees estimate their expected weekly or monthly pay. Predictive scheduling fosters better work-life balance by allowing employees time to find child care, coordinate second jobs and have a better understanding of the income they can expect each week.  

California does not have a statewide predictive scheduling law, however, larger cities have been creating requirements around predictive scheduling to aid hourly workers. It is imperative employers be aware of the differences between each ordinance as they change employee hours in response to seasonal, wage, and business conditions. Currently, Berkeley, Emeryville, Los Angeles, San Francisco, and San Jose all have laws that require some form of notification regarding schedules and penalties for failure to comply.

While each ordinance is unique, there are some provisions that appear in some form in almost every ordinance.

Berkeley, Emeryville, Los Angeles, and San Francisco require employers to give new employees a good faith estimate of their schedule prior to their first shift. Employees have the right to request changes to this proposed schedule which the employer is required to consider. These cities also require employers to post work schedules to employees at least two weeks in advance. Of these ordinances, all but Los Angeles requires employers to give written notice to employees of any changes made after the initial posting. All four of these cities have created the Right to Decline. Employees have the right to decline any changes made to the schedule after the initial posting. If employees choose to accept the short-notice changes, they are entitled to additional compensation in the form of predictability pay.

Berkeley, Emeryville, and Los Angeles have also created the Right to Rest and the Right to Request a Flexible Working Schedule. The Right to Rest allows employees to decline any shifts that begin within a certain time following the conclusion of the previous shift. Should they choose to accept the shift, employees are entitled to additional compensation. The Right to Request a Flexible Working Arrangement protects employees from retaliation for asking for a change in their work schedule or work conditions.

Berkeley, Emeryville, Los Angeles, San Francisco, and San Jose all require employers to offer additional hours to current employees before hiring new staff should additional work become available. Each city also requires the employer to display a city-created notice in a conspicuous place in the workplace so that employees are aware of their rights. Finally, each city has a record retention provision requiring employers to keep all records relating to compliance with the ordinance.

A brief description of the unique aspects of each city’s ordinance is provided below. Additionally, we have provided an easy-to-read table comparing the differences between each city.

Berkeley

Chapter 13.102 of the Berkeley Municipal Code governs employers with ten or more employees within Berkeley AND either 100 (for restaurants, retail/restaurant franchisees, or non-profit organizations) or 56 (for all other businesses) total employees globally. While employers must give 2 weeks’ notice of work schedules, domestic violence victims have the right to request their schedule not be posted publicly or shared with other employees. When in need of additional workers, employers must first offer additional hours to all part-time employees who have worked for at least 2 weeks, and give employees 24 hours to accept the offer.

Emeryville

City of Emeryville Ordinance No. 16-007 applies to all retail firms with 56 or more employees globally, and fast food firms with 56 or more employees AND 20 or more employees within Emeryville. Employers are not required to offer additional work to current part-time employees if the additional work would give the employee more than 35 hours in a week. If the additional work is more than 14 days away, employers must give employees 72 hours to accept the offer; if less than 14 days away, employers need only give 24 hours.

Los Angeles

City of Los Angeles Ordinance No. 187710 applies to retail businesses as defined by the North American Industry Classification System with 300 or more employees globally. Employers are not required to offer additional hours to employees if the additional time would trigger overtime rates. Employers must offer the additional hours to current employees at least 72 hours before hiring a new employee. Current employees have 48 hours to accept the offer. Unlike other cities, the rights protected by this ordinance cannot be waived by a bona fide collective bargaining agreement.

San Francisco

San Francisco Labor Code Articles 41 and 42 apply to retail establishments with at least 40 locations worldwide and 20 or more employees in San Francisco, including property service contractors when performing work within the city. San Francisco is unique in providing additional protections for workers. The ordinance creates a general principle of equal treatment for part-time and full-time employees. Additionally, employees must be compensated for on-call shifts in which they were not called into work.  Finally, employers must take special precautions to keep employees when undergoing a change of control.

San Jose

San Jose Municipal Code Chapter 4.101 applies to businesses with 36 or more employees. Unlike other ordinances discussed here, there is no predictive scheduling provision. However, employers must still offer additional hours to part-time employees before hiring new employees. Employers do not need to offer hours though if overtime rates would be triggered by the additional time.

 

 

Berkeley

Emeryville

Los Angeles

San Francisco

San Jose

Actual Text of Statute

Chapter 13.102 of the Berkeley Municipal Code: Fair Workweek Employment Standards

City of Emeryville Ordinance No. 16-007:

Fair Workweek Employment Standards

City of Los Angeles Ordinance No. 187710: The Retail Fair Workweek Ordinance

San Francisco Labor Code Article 41 (Hours and Retention Protections for Formula Employees Ordinance) & Article 42  (Fair Scheduling and Treatment of Formula Retail Employees)

San Jose Municipal Code Chapter 4.101 Opportunity to Work Ordinance

Covered Employers

Employers with 10 or more employees in Berkeley AND 100 (for restaurants, retail/restaurant franchisees, or non-profit organizations) or 56 (for all other businesses) total employees globally.

Retail Firms with 56 or more employees globally; Fast Food Firms with 56 or more employees globally AND 20 or more employees within Emeryville.

Retail Businesses as defined in the North American Industry Classification System with 300 or more employees globally

Retail Establishments with at least 40 locations globally and 20 or more employees in SF; Includes property services contractors for work performed in SF.

Businesses with 36 or more employees.

Specific Advanced Notice Provisions

Good Faith Estimate, Two Weeks’ Notice of Work Schedule, Notice of Changes, Right to Decline, Predictability Pay

Good Faith Estimate, Two Weeks’ Notice of Work Schedule, Notice of Changes, Right to Decline, Predictability Pay

Good Faith Estimate, Two Weeks’ Notice of Work Schedule, Right to Decline, Predictability Pay

Good Faith Estimate, Two Weeks’ Notice of Work Schedule, Notice of Changes, Predictability Pay

None.

Offer of Work to Existing Employees

Offer hours to part-time employees who have worked for employer for 2 weeks. Employees have 24 hours to accept the offer.

Offer up to 35 total hours per week to part-time employees. Employees have 72 hours to accept if work is 14 days away; 24 hours if less than 14 days away.

Don’t need to offer additional hours if overtime pay rate would result. Employers must offer at least 72 hours prior to hiring a new employee. Employees have 48 hours to accept.

Offer up to 35 total hours per week to part-time employees. Employees have 72 hours to accept.

Don’t need to offer additional hours if overtime pay rate would result.

Right to Rest

Can decline shifts occurring less than 11 hours after conclusion of previous shift; 1.5x pay for any hours worked within 11 hours of previous shift.

Can decline shifts occurring less than 11 hours after conclusion of previous shift; 1.5x pay for any hours worked within 11 hours of previous shift.

Can decline shifts occurring less than 10 hours after conclusion of previous shift; 1.5x pay for entire shift following insufficient rest period.

None.

None.

Right to Request a Flexible Working Arrangement

Employees who were employed for at least 3 months averaging 8 hours a week can request either Flexible or Predictable Working Arrangement. Employer must meet with Employee to discuss change in respond in writing. Rejections need a business reason.

Cannot retaliate against employees for requesting flexible working arrangements.

Employees may request preference for hours, times, or work locations. Employees are not required to find coverage for missing a complete or partial shift.

None.

None.

Notice of Rights

Must display official notice created by the City of Berkeley. Provide notice at time of hire and/or assignment to work within Berkeley. Posted in a conspicuous place in English, Spanish, Chinese, and any other language spoken by 5% of employees at worksite.

Must display official poster created by the City of Emeryville. Provide notice at time of hire. Posted in a conspicuous place in English and Spanish.

Must display official poster created by the City of Los Angeles. Posted in a conspicuous place in English, Spanish, Chinese (Cantonese and Mandarin), Hindi, Vietnamese, Tagalog, Korean, Japanese, Thai, Armenian, Russian, Farsi, and any other language spoken by 5% of employees at worksite.

Must display official notice created by the City of San Francisco. Posted in a conspicuous place in English, Spanish, Chinese, Tagalog, and any other language spoken by 5% of employees at worksite.

Must display official notice created by San Jose. Provide notice at time of hire. Posted in a conspicuous place in any language spoken by 5% of employees at worksite.

Waiver of Rights

Can be waived through express and unambiguous language in bona fide collective bargaining agreement.

Can be waived through express and unambiguous language in bona fide collective bargaining agreement.

Cannot be waived.

Can be waived through express and unambiguous language in bona fide collective bargaining agreement.

Can be waived through express and unambiguous language in bona fide collective bargaining agreement.

Records Retention Time

3 years

3 years

3 years

3 years

4 years

Potential Penalties

$1000 civil penalty for each employee retaliated against. $500 civil penalty for each violated provision. $50 to each employee for each violated provision.

$1,000 civil penalty for each employee retaliated against. $500 civil penalty for each violated provision.

Up to $500 payment to each employee whose rights were violated for each violated provision. $50 per day civil penalty for each day Predictability Pay is withheld from employee. Additional fines for failing to cooperate with compliance investigation.

Administrative fine up to $500 per eligible employee for violating Change of Control. $50 payment to employee for each right violated.

$50 civil penalty for each day, for each employee, for each violation under this ordinance.

Unique Protections

Domestic Violence Victim Protection for Posted Work Schedules

None.

None.

Equal Treatment for Part-Time Employees; Pay for On-Call Shifts; Change in Control Protections

None.

 

 

 

Berliner Cohen, LLP advises and represents employers on predictive scheduling within the state of California. For questions about predictive scheduling laws or other matters, reach out to our experienced Labor & Employment Department at 408.286.5800.