Last week Governor Kate Brown signed SB 828 into law, making Oregon the first state to mandate secure scheduling (also known as “predictive scheduling” or “safe scheduling”) for service workers. Although it’s been a boon for employers, the growth of technology which allows employers to structure employee scheduling around up-to-the-minute analyses of customer foot traffic in response to factors such as weather, as well as policies which schedule workers only for the hours or even minutes when they’re needed, have been the focus of increasing ire as employee schedules have grown increasingly unpredictable.
While secure scheduling has been a growing movement in cities, such as New York City and Seattle, Oregon’s step into the scheduling ring may presage other states’ participation in the trend.
Who is affected?
The law applies to employers in the retail, hospitality, and food service industries who have 500 or more employees worldwide, and their employees working in the state of Oregon. “Employee” does not include salaried workers, a worker supplied by a worker leasing company, or an employee of a business that provides services to or on behalf of the employer.
What are employers required to do?
Effective July 1, 2018, employers are required to provide each covered employee with a work schedule at least 7 calendar days before the first day of the schedule. (Beginning July 1, 2020, the notice time will increase to 14 calendar days.) The schedule must be provided in writing, and must additionally be posted in the workplace, in English and in the language typically used to communicate with employees.
An employer may request a change to the written schedule, in conversation or in writing, after advance notice has been given, but the employee is free to decline. Additionally, employers must provide employees with 1 hour of pay at the employee’s regular rate, in addition to wages earned, in compensation for employer-requested schedule changes which do not result in loss of hours. For employer-requested or -mandated changes which do result in loss of hours, such as cancelation of an employee’s shift, the employee must receive compensation at ½ the employee’s regular rate of pay for each scheduled hour that the employee does not work.
Employers are also required to pay additional compensation when they request that an employee work during mandated “rest periods.” Absent the employee’s request or consent, employers are prohibited from scheduling or requiring an employee to work during the first 10 hours following the end of the previous day’s shift and the first 10 hours following the end of a shift that spanned 2 calendar days. If the employee consents to work during these periods of rest, the employer is required to pay time-and-a-half for all hours worked during these periods.
Employers are allowed to maintain a voluntary standby list of employees who wish to be asked to work additional, unscheduled hours due to unanticipated customer needs or unexpected employee absences. These employees are not eligible for additional compensation when they agree to work additional unscheduled hours, although they are still entitled to time-and-a-half when working during the mandated rest period. Employees are entitled to decline additional hours, and to be removed from the voluntary standby list at their request, without retaliation from the employer.
Employers are also required to provide new hires with a “good faith estimate of work schedule,” which must include the median number of hours the employee can expect to work in an average month and specified information about the employer’s voluntary standby list and on-call expectations. Both new employees and existing employees have the right to inform the employer of limitations or changes to their work schedule availability without retaliation; however, the employer is under no obligation to grant an employee’s request not to be scheduled at certain times or at certain locations, except for reasons already protected under law.
Employers are required to display a poster in the workplace which describes the employee rights granted under this Act. Perhaps in a sign of things to come, however, the posting requirements do make an allowance for circumstances in which posting is not feasible, such as situations in which employees work remotely or do not have a regular work site. In these situations, the employer may provide the poster on an individual basis in a physical or electronic format that is reasonably conspicuous and accessible. Although employers have long sought to fulfill posting requirements electronically or by other means, especially for employees who do not work at a centralized job site, the majority of posting laws and regulations still require physical posting in the workplace.