With Fair Workweek laws already in place across the likes of New York City, San Francisco, and Seattle, other cities like Philadelphia, Los Angeles, and Chicago are set to follow suit. There’s a fundamental and widespread shift in the rights of shift workers across the country.
Are you prepared?
The 2019 lawsuit by New York City against Chipotle highlights regulators’ intent to go after employers for non-compliance with Fair Workweek laws. And it’s important that businesses who fall under Fair Workweek laws understand what they are — and how they can stay compliant.
Read on to learn what Fair Workweek really is and what you can to be prepared for laws that may impact your business.
What is Fair Workweek?
You might have heard it called Predictive Scheduling, Advanced Scheduling, or Secure Scheduling. In a nutshell, Fair Workweek is legislation built to provide shift workers with more predictable, stable schedules. It’s also in place to give those workers a greater opportunity to pursue full-time employment.
There’s a common misconception that Fair Workweek is solely about providing employees with their schedules in advance. Turns out, that’s not the case in many jurisdictions.
And while there are nuances to how each jurisdiction applies the concepts (if at all), the overarching concepts remain the same regardless of the jurisdiction in which your business is located.
So what are the 7 requirements?
- Physical Notice Posting
- Good Faith Estimate
- Advance Notice of Schedules
- Compensation for Schedule Changes (Predictability Pay, Premium Pay)
- Right to Rest (No Clopenings)
- Access to Hours
- Reporting & Record Keeping
1. Physical Notice Posting
The easiest step to becoming Fair Workweek compliant is posting the required posters and notices of employee rights in your workplace. This is generally the first thing that auditors look for during a compliance audit.
Not sure what those notices are?
Reach out to your local government. Your city or state will usually provide them to you at no cost.
Tip: Be sure to get multilingual posters to account for your employees who speak a different language.
2. Good Faith Estimate
A Good Faith Estimate (GFE) is just that — a reasonable estimate of where, when, and how often an employee can expect work. Think hours, days, times, and locations. Typically, you need to give that estimate to each new hire before they work their first shift.
In some cities, like New York, employers must also provide employees with an updated GFE if the employee’s schedule is expected to change considerably (there are specific details, but we won’t go into them here).
It can be a hassle to manage Good Faith Estimates — manual paperwork, complex filing systems, and hours of signature chasing. Thankfully, there are steps you can take to make it easier.
- Use a workforce management system with built-in communication tools so you can simply and quickly provide employees with a digital copy of their Good Faith Estimate before starting their first shift.
- Request that each employee confirms that they’ve read the information before starting their first shift — even better if you do it directly in your digital tool so you have a record of their consent.
3. Advance Notice of Schedules (Predictive Scheduling)
Advance notice is the foundation for Fair Workweek laws to provide greater stability for employees and their families.
While requirements will change depending on your jurisdiction, some requirements include:
- Initial work schedules. On their first day, provide new employees with an initial work schedule that runs through to the next posted schedule.
- Advance notice of work schedules. Provide employees with their work schedules a set time in advance of their shift. For example, posting at least two weeks from the first shift on the schedule.
- Posting of work schedules. Post all schedules in the workplace and send them electronically to all employees.
- Notice of schedule changes. For any schedule changes, directly contact each affected employee within a certain timeframe (for example, within 24 hours of the change).
- Consent to schedule changes. Capture employee consent for manager-initiated schedule changes. Employees often have the right to decline any schedule change without retaliation.
- On-call shifts. Compensate employees for being on call, even if they don’t work. In some cases, on-call shifts are prohibited entirely.
If you’re using clunky spreadsheets, paper pinned to the backroom wall, or sporadic text messages to share schedules, you’re not alone. But it doesn’t mean you’re in good company. Here are three tips to make advance notice easier.
- Use scheduling software that allows staff to view their schedule on any internet-enabled computer, mobile device, or tablet. That way, employees can see their published schedules at any time.
- Employ a kiosk app to allow your employees to check their schedule at any time on the device, helping to alleviate the need for printed, paper schedules to be posted.
- Amend and re-publish the schedule to affected employees, who should be automatically notified by push notifications, SMS, or email — even all three. And when you make changes, require the employee to confirm acceptance of the shift before clocking in, providing a digital record of acceptance and consent to the change.
4. Compensation for Schedule Changes (Also known as Predictability Pay or Premium Pay)
Compensation for schedule changes (also known as Premium Pay or Predictability Pay) is the requirement for employers to compensate employees when a manager makes a change to their schedule after it is posted.
Types of schedule changes that may require compensation include:
- Changes to scheduled day, start time, end time, or duration of a shift
- Changes to location of shift
- Canceled shifts
- Creation of new shift that an employee is required to work
Of course, there are always exceptions to the Predictability Pay requirements, which generally include:
- Employee to employee shift swaps not initiated by management
- Employee-requested changes (for example, an employee asks to leave early)
- If new shifts would require the employer to pay overtime wages
- Small changes to the schedule (for example, less than 15-minute change)
- If unforeseen circumstances (like natural disasters) prevent normal business operation
Here’s a quick overview of the Predictability Pay requirements for covered Fast Food employers in New York City:
|Amount of notice||Additional hours or shifts||Changes to shifts but no change to total hours||Reduced hours or shifts|
|Less than 14 but more than 7 days notice||$10 per change||$10 per change||$20 per change|
|Less than 7 days but more than 24 hours notice||$15 per change||$15 per change||$45 per change|
|Less than 24 hours notice||$15 per change||$15 per change||$75 per change|
Bottom line: the closer in time to the shift that the change is made, and the greater the change, the greater the Predictability Pay required. Read on for three tips to help you manage Predictability Pay.
- Use a tool that can calculate the required premium and apply this directly to the employees’ timesheet if required
- Require employee consent whenever schedules are changed during the advance notice period
- Prompt employees to digitally record whether a same-day change was manager- or employee-initiated. Why? If the employee attests the change was initiated by them, then Predictability Pay will be waived and a digital record of employee consent is captured.
5. Right to Rest Between Shifts (No Clopenings)
Believe it or not, you’ve heard of clopening, or at least of the concept. Clopening occurs when an employee closes, and then opens the next day. Avoiding clopening shifts not only helps your business avoid costly penalty payments, but it’s a great way to ensure your team members are well-rested and better able to provide a great experience for your customers.
Steer clear of scheduling clopening shifts with these tips.
- Use automated scheduling tools that recognize the requirement for rest between shifts and avoid scheduling anyone in a way that will trigger a penalty.
- Ditch the manually addition. Ensure your workforce management tool can recognize compensation requires and add the appropriate Predictability Pay to employees’ timesheets for you.
- We can’t say it enough. If you need to schedule an employee for shifts without the required rest, the employee must consent.
6. Access to Hours
A key pillar of Fair Workweek law is providing existing part-time employees with the opportunity to pursue full-time employment. Employers need to offer open shifts and available hours to existing employees before hiring new employees.
Ever tried to do this manually? Text messages, group chats, emails, phone calls — it can seem like a black hole when you’re trying to fill in the gaps. Instead, make it easy for your team to have access to hours.
- Clearly communicate what shifts are available. Streamline messages through one communication tool to make sure no messages get lost in the shuffle.
- Enable push notifications to alert employees of open shifts.
- Create a company policy to let employees know that they can pick up shifts — and make sure they can easily do see with a single click.
7. Record Keeping
Training your managers and ensuring they schedule your team in a compliant manner is a must. But you also need to be able to prove compliance to regulators when audited.
Under Fair Workweek laws, employers must generally maintain records documenting compliance for often up to three years, including (but not limited to):
- Hours worked each week
- Shifts worked (date, time, and location)
- Good faith estimates (and revised good faith estimates if required)
- Clopening consents
- Change of schedule consents
- Each written schedule provided to workers
- All premium payments or predictability payments made
With the sheer complexity of managing these requirements day-to-day, maintaining a clear, coherent record of compliance for auditors is near impossible if you’re using a manual solution like pen and paper or excel.
Don’t get caught with unnecessary penalties. Adopt a digital workforce management solution that can:
- Record all schedules
- Track all schedule changes and employee consent
- Capture every penalty payment
Stay on the right side of compliance
If you want to know the specific requirements affecting your business, the best way is to get in touch with your trusted, local employment law experts.
And while there’s no silver bullet to becoming Fair Workweek compliant, there are a few steps you can take to help you. Contact us to learn how Deputy can help you be more confident in protecting your business and preventing significant fines when audited.
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