NEW LAW: Philadelphia Passes Predictable Scheduling Law

The Philadelphia City Council recently passed the Fair Workweek Employment Standards Ordinance. Under this new law, which goes into effect on January 1, 2020, bring predictable scheduling requirements to large retail, hospitality and food service employers in Philadelphia.

Who is considered a large retail, hospitality and food service employer?

For purposes of the new law, a “large employer” is any retail, hospitality and food service employer who employs 250+ employees (full-time, part-time, or temporary) and has 30 or more locations worldwide.

Most importantly, the law considers franchises with separate ownership, but part of the same chain of business (e.g. all McDonalds franchises in Philadelphia) as the same “large employer” for purposes of this law. This means that many (if not all) franchise businesses in Philadelphia will be subject to this new law.

What are the employer’s requirements under this law?

There are several scheduling requirements that employers must follow:

  • Upon hiring a new employee, employers must give each new employee a written, good faith estimate of the employee’s work schedule which contains –
    • The average number of work hours the employee can expect to work each week over a typical 90-day period;
    • Whether the employee can expect to work any on-call shifts;
    • A subset of days and a subset of times or shifts that the employee can typically expect to work, or days of the week and times or shifts on which the employee will not be scheduled to work.

NOTE: Employers are also required to revise the good faith estimate when there is a significant change to the employee’s work schedule due to changes in the employee’s availability or to the employer’s business needs.

  • On or before a new employee’s first day of employment, the employer must provide the employee with a written Work Schedule that runs through the last date of the currently posted schedule.
  • For existing employees, employers will be required to post the Work Schedule in a conspicuous and accessible location where employee notices are customarily posted no later than 10 days before the first day of any new schedule from January 1, 2020 to December 31, 2020
    • Starting January 1, 2021, the Work Schedule must be posted no later than 14 days before the first day of any new schedule.
    • For purposes of this statute, a “Work Schedule” is all of an employee’s regular and on-call shifts, including specific start and end times for each shift, during a Work Week.
  • Employers must provide employees with notice of any proposed changes to the Work Schedule as promptly as possible and prior to the change taking effect.
    • In addition, if a change is made, the employer must revise the written Work Schedule to reflect any changes within 24 hours of making the change.

Are employees allow to decline shifts/hours not included in the Posted Work Schedule?

Yes, employees are allowed to decline to work any hours or additional shifts not included in the Posted Work Schedule.

If the employee voluntarily agrees to work such hours, such consent must be recorded by written communication.

Is there any “penalty” if the employer changes the Work Schedule?

Yes, if the employer initiates a change to the Posted Work Schedule after the advance notice date (10 [14 in 2021] days) before the first day of the new schedule), then the employer must pay the employee “predictability pay” in addition to his regular hourly rate as follows:

  • One hour of Predictability Pay at the employee’s regular rate of pay, when the employer adds time to a work shift or changes the date or time or location of a work shift, with no loss of hours.
  • Predictability Pay calculated as no less than one-half times the employee’s regular rate of pay per hour, for any scheduled hours the employee does not work for the following reasons:
    • Hours are subtracted from a regular or on-call shift; or
    • A regular or on-call shift is cancelled.

However, predictability pay is not required when:

  • An employee requests a shift change by written communication, including but not limited to
    • voluntary additions or subtractions of hours that are initiated by the employee,
    • the use of sick leave, vacation leave, or other leave policies offered by the employer;
  • A schedule change is the result of a mutually agreed-upon shift trade or coverage arrangement between employees, subject to any employer policy regarding required conditions for employees to exchange shifts;
  • The employer’s operations cannot begin or continue due to:
    • Threats to the employees or the employer’s property;
    • The failure of a public utility or the shutdown of public transportation;
    • A fire, flood or other natural disaster;
    • A state of emergency declared by the President of the United States, Governor of the state of Pennsylvania, or Mayor of the city; or
    • Severe weather conditions that disrupt transportation or pose a threat to employee safety.
  • An employee begins or ends work no more than twenty minutes before or after the scheduled start or end time of the shift;
  • An employee volunteers to work additional hours in response to a mass written communication from the employer about the availability of additional hours, provided that the mass communication is only used for additional hours that are the result of another employee being unable to work scheduled hours, and the communication makes clear that accepting such hours is voluntary and the employee has the right to decline such hours;
  • Employee hours are subtracted due to termination of employment;
  • Changes are made to the Posted Work Schedule within 24 hours after the advance notice date (10 [14 in 2021] days)
  • The covered employer subtracts hours from an employee’s work schedule for disciplinary reasons pursuant to a multi-day suspension, provided the employer documents in writing the incident leading to the disciplinary action;
  • A ticketed event is cancelled, scheduled, rescheduled, postponed, delayed, increases in expected attendance by 20% or more, or increases in duration, due to circumstances that are outside the employer’s control and that occur after the employer provides the Posted Work Schedule with the advance notice date (10 [14 in 2021] days).
    • Additional hours due to a change in a ticketed event’s duration that fall within this exemption will also be fully exempt from section 9-4602(6).
  • A hotel banquet event is scheduled, due to circumstances that are outside the employer’s control, after the employer provides the Posted Work Schedule with the advance notice date (10 [14 in 2021] days).

Are there any limitations on hiring new employees?

 Yes, before hiring new employees from an external applicant pool (including through a staffing agency), employers must provide existing employees with written notice of available work shifts for at least 72 hours, unless a shorter period is necessary in order for the work to be timely performed.

If the employer has several locations and it is a regular practice of the employer to schedule employees across multiple locations, then the employer must offer those available shifts to these employees. If that is not a regular practice, then offering additional shifts to employees at a different location is optional.

The notice must be in English and in the primary language(s) of the employees at the particular workplace and it must be posted in a conspicuous location at the workplace that is readily accessible and visible to all employees. The notice must also be provided electronically to each employee if the employer customarily communicates scheduling information in such manner with employees.

The employer can only hire from an external applicant pool to fill these available shifts if the employer provides notice of available work shifts as described above, and:

  • No employee accepts the offer of available work shifts within 24 hours of the end of the 72-hour posting period; or
  • The employer receives written confirmation from eligible employees that they are not interested in accepting the available work shifts; or
  • Existing employees have accepted a subset of the offered work shifts, in which case the existing employees must be awarded that subset of work shifts, and external applicants may be offered the remaining shifts

Employers are also required to provide its employees with written notice of its policy regarding offering and distributing work shifts at the time of hire and within 24 hours of any change in the policy. In addition, employers are required to post the notice in an accessible location in the workplace. The notice must advise employees:

  • Where employees can access written notices of available work shifts;
  • The process by which employees may notify the employer of their desire to work the available work shifts;
  • The criteria for distribution of work shifts among qualified and interested employees.

Are there any recordkeeping requirements?

 Yes, employers must maintain and keep records demonstrating compliance with the law for a period of two years.

In addition, upon request by any employee, the employer must provide that employee with work schedules in writing for all employees at the location for any previous week for the past two years, including the originally posted work schedules and any modified versions.