October 31 Tip of the Week

“Compliance: The Next Frontier”

Compliance with labor and employment laws is one of the most difficult responsibilities faced by Human Resources professionals.  There are several different sources of laws and regulations that govern the employment relationship and the rules seem to be changing all the time.  Wage and hour laws are one of the most comprehensive and difficult areas to keep abreast off – from the changing minimum wage requirements to the different types of exemptions contained in the law, from the timing and manner of payment laws to the types of deductions an employer can make to an employee’s pay, human resources professionals need to keep up to date to ensure they meeting all of the requirements of these laws.  Now, if things aren’t complicated enough, let’s add a new topic to the laundry list of laws and regulations:  the scheduling of work. 

Employers who hire primarily hourly workers, such as retail establishments, restaurants and bars, and other hospitality industry employers are now being subjected to “Fair Workweek” laws, also referred to as predictive scheduling laws.  These laws place additional obligations on employers related to the scheduling and deployment of workers.  In some cases, the law requires an employer to post an employee’s work schedule 14 days in advance, to notify the employee of potential call-in opportunities, and to maintain certain records regarding employee scheduling.  The purpose of these laws is to provide hourly workers with fluctuating schedules a greater ability to balance their work and personal life obligations by providing a more transparent and predictable work schedule. 

Oregon state was the one of the first jurisdictions to pass such a law.  Here is a link to a summary of the law:  BOLI_Predictive Scheduling.pdf (oregon.gov).  As you can see, in Oregon, covered employers must:  provide employees with their work schedule 14 days in advance; allow employees to provide input into scheduling regarding their availability; and allow employees a period of rest between their work shifts.  Under the law, an employer cannot schedule an employee to work a closing shift and then schedule the same employee to open the next day – employees must be given 10 or more hours between shifts.  Employers who violate these rules may be required to pay employees overtime or additional pay for any variations they make from the schedule or for any time that they violate the predictive scheduling rules.  Oregon’s law took effect in 2017 and applies to businesses with more than 500 hospitality, restaurant, or retail employees worldwide.  Employers must provide an employee at the time of hire with the median number of hours they will be expected to work each month.  Employers must also give employees the right to express an interest on being placed on a “voluntary stand by list” for additional hours.  Employers must post a notice in the workplace that explains the rights of employees under this law.  Here is a link to resources regarding Oregon’s predictive scheduling rules:  BOLI : Predictive scheduling : For Workers : State of Oregon.

Oregon is the first and, at this time, only state to have passed this type of law.  Other states are currently considering these types of laws and a few have passed laws regarding call in pay, shift length, and flexible scheduling.  While states have been slower to act with respect to these worker protections, several cities have implemented rules regarding fair workweeks: 

These local laws and ordinances are similar to the Oregon state law in terms of the impact they have on employee scheduling.  They are different, however, in terms of which employers are subjected to the laws.  Oregon’s law requires a high number of employees on a worldwide basis, while the city ordinances generally apply to smaller businesses and have lower employee thresholds.  The San Jose “Opportunity to Work” law is also a little different in that its primary focus is to require employers to offer additional work shifts to existing employees before hiring new employees, giving hourly employees an opportunity to increase their wages by working additional available shifts. 

As with other labor and employment laws, compliance with these new regulations will require human resources professionals to be educated and informed.  Each of these laws comes with a posting requirement, recordkeeping obligations and other aspects that will require employers to adopt policies and procedures that will ensure that their obligations under the law are met.  MyHRcounsel can assist you with both the knowledge and implementation of these new rules.