The History behind Seattle’s Secure Scheduling
Seattle was the second city in the country to pass a Secure Scheduling Ordinance. At 27 pages, it is more comprehensive than the city’s minimum wage law or sick leave law. Initiated and supported by Unions, the law excludes companies whose employees are unionized, which could be a factor in driving union growth after years of declining membership. The ordinance goes into effect July 1, 2017.
The ordinance was touted as a law to protect workers and provide workers rights. Yet, over 75% of the employees affected didn’t support the law according to a recent survey in June 2016 of restaurant employees. 70% of those workers already work the hours they want. Businesses and other related organizations had little input into the law. It took only 1 week from introduction to vote and passing into law.
The ordinance closely followed a similar ordinance that was passed in San Francisco and went into effect in October 2015. However, in San Francisco, things aren’t going exactly as planned. Over ⅓ of affected businesses in San Francisco are less flexible when it comes to employee shift changes and 21% are hiring less part time positions with 17% reducing total job positions, including full time positions. In other words, employees are complaining that they don’t have the flexibility in their job they used to enjoy and employers have curtailed hiring. Those are hardly the desired effects most people want when it comes to bettering the workplace.
Nevertheless, Seattle and Emeryville have now jumped on board and more cities are considering similar bills. The purpose of this article is to provide an overview of secure scheduling, advanced scheduling, or restrictive scheduling laws for businesses in Seattle and around the country whose lawmakers are considering such bills.
The ordinance covers several major components including employee scheduling, available hours, and hiring new employees.
Covered Employers and Employees
Employers who are retailers or food service businesses who have either 1) 500 employees worldwide, or who are 2) full service restaurants that have at least 500 employees and 40 locations worldwide.
Employees of these restaurants who work at least 50% of the time in Seattle are covered under the new ordinance.
Union employees are not covered under the ordinance.
Advanced Work Scheduling for Employees
Employers are required to provide advanced schedules to employees at least 14 days prior to shifts starting. Any changes after the schedules are posted incur advanced pay for the employees that are affected.
This includes immediately providing a work schedule for a new hire at the time of hire for the next 14 days. In addition, employers must provide new hires with a “good faith” estimate of the hours they can expect to work and if the employee will be on call for shifts. The ordinance does not cover what degree of hourly variance is acceptable to be compliant with the “good faith” estimate of hours, even though it covers the fines for non-compliance.
Employee’s Right to Request Input on their Schedules
The ordinance gives employee the right to give input and request scheduled hours, times, and places of work. Employers must engage interactively with the employees in these discussions, and some documentation of these discussions is required. Furthermore, employers are required to grant employee requests when the reason is because of a major life event, unless the employer can prove a bona fide reason to decline the request.
Major life events include anything that involves the employee’s transportation, such as a flat tire, housing, other jobs, education, care-giving responsibility, or care of a serious health condition. These categories are broad and require written documentation of the reason for the request and a written response from the employer.
Rest between Work Shifts
Employees must be given at last 10 hours between shifts. This aspect of the law was included to prevent clopenings, when employees close a restaurant and reopen the next day. Even when employees request the ability to do this because it works best with a school or other job schedule, employers are now required to pay time and a half for all hours that are less than 10 hours apart.
Advanced Wages for Scheduling Changes
This is one area that Seattle’s law is more restrictive than the San Francisco law. Seattle’s Secure Scheduling Ordinance states that employers who change employees schedules after posting the schedule must pay additional wages for any changes and that includes when an employee calls in sick and another employee has to be called in to cover the shift. San Francisco allows an exception for that specific circumstance and doesn’t require additional wages to be paid to the employee called in to work or who failed to provide 7 days notice. Additionally, San Francisco allows employers to make changes up to 7 days before the scheduled shift, while still requiring a 14 day posting of schedules.
Under the Ordinance, employees can call in to request a change or to not work. If the cancellation of the shift is due to an employee major life event or emergency, then the employer can’t require the employee to find a substitute. However, the employer can’t inquire as to the nature of the cancellation. The employer can only request a written statement from the employee that the change was due to an “emergency or major life event.” The ordinance doesn’t cover how employers are to determine during the cancellation phone call whether or not the employee should have to find replacement coverage.
If hours are added, then the employee earns a bonus hour of pay. If hours are reduced or cancelled, ,then employees still earn half of their scheduled hours of pay.
If start and ending hours of the shift change, even if the employee doesn’t lose or gain any additional hours, the employer has to pay an additional hour of wage.
If the employee was scheduled to be on call, but wasn’t called into work, then the employee makes half of the wages for the hours not worked.
In other words, it can cost an employer double pay for having an employee work and extra hour after a scheduled shift to help last minute customers. Even for part time employees, an unscheduled hour of work results in the equivalent of overtime pay.
Labor is often the highest expense of running a business and the additional pay can serve to discourage employers from over scheduling or adding available hours for employees- even when employees would love to take those hours.
Exceptions to the Increased Wages Rule
There are a few exceptions to the scheduling penalties imposed for changes to work schedules.
- If an employee requests a change- such as asking to get off early for to attend a social event.
- Employee-employee shift swaps
- Employees accepting work from a “mass communication” about additional hours available. Mass communications must only provide hours as a result of another employee being unable to work those hours and must clearly state that acceptance is voluntary.
- Employee acceptance of hours as a result of an “in person group communication” that involves at least 2 or more currently working employees about additional hours due to unanticipated customer needs. The employees must already be working and must be to address current and unanticipated customer needs.
- Employees accepting hours under “access to hours” (covered below)
- Reducing employees hours due to a bona fide discipline
- Employers inability to continue operations due to threats to the employees or the property, recommendation of a public official, public utilities failure, natural disaster, weather, an event that would cause the employer to violate the law.
Employee Access to Additional Hours Rule
Before employers can hire for any new positions, including temporary and seasonal. Employers must offer those hours to existing employees. The offering must be posted for at least three days, which means it hardly helps when employees unexpectedly call in sick or have another emergency. Unlike San Francisco’s law, which allows employers to schedule a replacement when employees call in sick or fail to show up for work, Seattle’s ordinance still requires the payment of increased wages for those changes to the affected employees.
Posting Requirements, Record Keeping, and Penalties
Employers must post a Secure Scheduling Poster in the workplace. The posters must be in English and any other primary languages of the employees.
Additionally, employers are required to maintain records of compliance for at least three years. This includes documenting employee requests of schedules and hours worked, scheduling, changes and increased wages paid.
Employers are not allowed to interfere with any right given under the ordinance. Employees have the right to decline any additional hours offered that were not on the original work schedule posted.
Employers are fined $500 for the first offense. Second offenses carry a fine of up to $1,000 or 10% of the total amount of unpaid compensation, whichever is greater. Third and greater offenses carry a penalty of up to $5,000 or 105 of the unpaid compensation, whichever is greater. Additionally, civil penalties of up to $2,000 may also apply. Subsequent fines are to be increased by 50% for each violation over a 10 year period. Additionally, employees can see civil redress and get up to $5,000 in recompense or double of the injury or unpaid compensation.
Other Aspects of the Law
The ordinance does provide for hiring through hiring programs and diversity hiring, but has detailed restrictions about how many employees can be hired and the process the business must pass through to qualify.
Next Step for Businesses and Employers
Although the employers covered are larger retail and food service employers, it is likely that the ordinance will be expanded to cover more businesses. At the council meeting to answer questions about the new ordinance, one council member mentioned that the ordinance doesn’t apply to other situations. . .”yet.”
Seattle employers now have to comply with several major employment laws. A recent study for San Francisco found that their secure scheduling ordinance surpassed the minimum wage ordinance and sick leave ordinance in difficulty to comply and expense to companies. Seattle businesses have had to scramble to comply with the many employment laws passed recently by the city council.
Additionally, businesses in other cities may soon have a similar law to comply with. Emeryville passed a similar law covering all employers with 55 or more employees. Portland, Oregon has repeatedly stated that they desire to input such an ordinance and are stopped by a temporary state law that expires at the end of 2017. Several other cities and states have considered such a law in the last year.
Fortunately, there is a way to more easily comply while reducing the bottom line. SwipeClock offers an array of workforce management tools, including optimal scheduling, time tracking and records retention to help businesses stay compliant with employment laws.
Not only with the workforce management solutions help compliance be easier, but will also facilitate lower bottom lines by optimizing employee scheduling, automating records and employee notifications, and managing the various rules of the ordinances. Check out www.swipeclock.com for more information on how we can save you money..
Written by Annemaria Duran. Last updated May 4, 2017