Hunton Employment & Labor Perspectives

On Monday, September 19, 2016, the Seattle City Council approved an ordinance (C.B. 118765) designed to bring more stability to the schedules of retail and food service industry workers, who often experience last-minute scheduling changes, loss of paid hours, and back-to-back shifts. The law, which was developed during a series of meetings between the City, business owners and worker advocates, will be codified in Chapter 14.22 of the Seattle Municipal Code and will take effect on July 1, 2017.

The law applies to hourly (full-time, part-time and temporary) employees in Seattle who work for retail, food services or drinking establishments which employ 500 or more employees worldwide, or full-service restaurants with more than 500 employees and forty or more full service locations worldwide.  It does not apply to employees covered by a collective bargaining agreement (“CBA”) if the law’s requirements are expressly waived in the CBA in clear and unambiguous terms, and if the employees covered by the CBA have ratified an alternative structure for secure scheduling that meets the ordinance’s public policy goals.

Under the law, newly-hired employees are entitled to a good-faith estimate of the hours they can be expected to work each week.  This estimate is not a contractual offer and the employer is not bound by it, but the employer is required to communicate any significant changes from the estimate.  Employers also must entertain employees’ requests for particular work schedules, both at the time of hire and during the employment relationship.  They may grant or deny these requests for any lawful reason, as long as the request is not related to a “major life event,” defined as changes in the employee’s transportation or housing, own serious health condition, responsibilities as a caregiver, education or training program, or other job responsibilities.

Covered employers must provide each employee with written notice of work schedules at least 14 calendar days in advance of scheduled work.  If either the employer or employee wishes to change those scheduled hours, they must notify the other party as soon as practicable.   Employees have a right to decline requests to work non-scheduled hours, if the request differs from the hours in the 14-day advance written notice, without fear of retaliation.  However, with the employer’s approval, employees voluntarily may swap shifts or arrange for replacement coverage.

Employers cannot ask or require employees to find replacement coverage if the employee’s work schedule change is for a reason covered by another local, state or federal law (such as paid sick time, or family and medical leave).  If an employee requests a scheduling change because of an emergency or “major life event” (as defined above), the employer can ask but not require the employee to find replacement coverage. Employers can require employees to find replacement coverage when they request work schedule changes for other, non-protected reasons.

The following provisions of the new law are designed to protect employees from patterns or practices of under or over-scheduling:

• Before hiring new employees, employers must offer additional hours to qualified internal candidates.
• Employees have a right to decline opening and closing shifts that are separated by less than ten hours, without fear of retaliation. If they do accept work on such shifts, however, employees will receive time and a half for the hours that are less than ten hours apart.  (This provision does not apply to split shifts.)
• If an employer subtracts hours from a work shift before or after the employee reports for duty, changes the date or start or end time of a work shift with a loss of hours, cancels a work shift, or schedules an employee for an on-call shift for which the employee does not need to report to work, the employer must pay one-half the pay for the length of the scheduled work shift, or the remainder of the work shift.
• Additions to scheduled work shifts, or changes to the date, start or end time of a work shift with no loss of hours, will require the employer to pay an additional hour, on top of wages actually earned.
• No additional compensation is needed for employee-arranged work shift swaps or coverage approved by the employer, for changes requested by employees, for additional hours that employees volunteer to work in response to a written notification from the employer about the availability of additional hours, for changes to operations resulting from natural disasters or failures of public utilities, or hours subtracted for legitimate disciplinary reasons.

Scheduling legislation of this nature currently is under consideration in Oregon, California, New York, North Carolina, Connecticut, Washington D.C. and Illinois.