A client recently asked me about “fair work week,” “predictive scheduling,” & “predictive pay” laws, particularly San Francisco’s laws. I thought that our discussion would make an interesting blog post.

The backstory on these types of laws is that they’re a reaction to our 2008 economic collapse; the backlash against Wall Street; alleged lack of economic regulation; the movement for a higher minimum wage (typically $15/hour); & to decrease business’ reliance on part-time employees & alleged abuses of part-time employees & overtime eligibility. The intent is to make it easier for people working multiple jobs or multiple shifts (for the same employer), & balancing non-related activities like childcare, to hold onto those jobs while maintaining essential non-work activities like childcare, school scheduling & healthcare, & to prevent overtime pay abuses.

Many of these laws are commonly referred to as “predictive scheduling” & “predictive pay” laws. That is, they focus on giving employees prior notice of work schedules & changes to those schedules.

San Francisco was one of the 1st municipalities to enact such legislation (2015). So, these are new laws. Many issues are still being worked out.

San Fran actually passed 2 laws: (1) HOURS AND RETENTION PROTECTIONS FOR FORMULA RETAIL EMPLOYEES & (2) PREDICTABLE SCHEDULING AND FAIR TREATMENT FOR FORMULA RETAIL EMPLOYEES. My analysis discusses both laws as if they’re one & the same.

Other states or municipalities that have passed similar laws include Emeryville, CA, (Emeryville & San Fran are the only CA cities that currently have these laws), New York City, Seattle WA, Oregon, Arkansa, Georgia, Tennessee, Iowa, Michigan, Missouri & Ohio. So you can see that these are growing in popularity.

The San Fran laws apply to any employer employing 20 or more employees in the COUNTY (“city” is defined as the “county;” an employer is the total number of employees working throughout the chain; this doesn’t include nonprofits or government entities), AND that have 11 or more locations worldwide. So this doesn’t apply to all employers. San Fran calls this the “Formula Retail Use” or “Formula Retail Establishment.” These laws apply to most retail & service chain businesses that qualify, including restaurants, bars & takeout. These chains have to file an “affidavit”—http://forms.sfplanning.org/Formula_Retail_Affidavit.pdf, that they’re a qualifying business. Even non-qualifying businesses need to complete the affidavit, though they don’t need to complete the full form.

An “employee” is anyone who works at least 2 hours per week for an employer & is non-exempt (i.e., overtime eligible; hourly paid not salaried).

Employers must post these laws’ compliance posters in their workplaces, & provide employees a written estimate of their work schedule, including their shifts, days & hours, engage in an interactive discussion with employees to modify those schedules, & maintain records for 3 years. However, San Fran’s minimum wage ordinance requires at least 4 years of record keeping, so for all practical purposes, it’s best to maintain at least 4 years of records. Why San Fran chose 3 years for their predictive scheduling & pay laws, I don’t know. Maybe they like red-tape & confusion (not that Illinois is any better–10 years under the Wage Payment & Collection Act,Illinois Statutes Chapter 735. Civil Procedure § 5/13-206).

San Fran’s laws are enforced by the City’s Office of Labor Standards Enforcement. Penalties may include anything from written warnings to job reinstatement or some sort of corrective measure like change in scheduling; payment of lost wages (AKA backpay); a penalty that’s the double of lost wages (sometimes called “liquidated damages), the City’s enforcement costs (legal & investigative fees), & another penalty of up to $500 for each affected employee. Additionally, employers are supposed to pay 1 hour of pay for each shift change if less than 7 days notice is given to the employee. If less than 24 hours of notice of a shift change is given, then the employee gets an additional 2 hours of pay, if the shift is 4 hours or less. However, if the shift is longer than 4 hours (4 hours & 1 minute or more), then the employee gets 4 hours of pay. If an employee is on-call, but not called in to work, then they get 2 hours of pay if the on-call shift is 4 hours or less, or 4 hours of pay, if the shift exceeds 4 hours.

Consistent with the increase in red-tape & confusion, other agencies may be involved in enforcement. For example, San Fran’s Dept. of Building Inspections (DBI) has the authority to label a business as “formula retail use” or “establishment” business. Whether or not that means that their DBI will blow the whistle on an improperly labeled business, I don’t know.

Unionized workplaces may not need to comply with this law. It depends on what their collective bargaining agreement permits.

San Fran also published a relatively simple PowerPoint on this topic at: https://sfgov.org/olse/sites/default/files/FileCenter/Documents/12877-FRERO_PPT_8-4-15_FINAL.pdf.