Seattle Secure Scheduling Ordinance Set to Take Effect July 1, 2017

On Sept. 19, 2016, the Seattle City Council unanimously passed the Secure Scheduling Ordinance, which applies to large retail and food service employers in Seattle. It requires these employers to provide employees with estimates of work hours, advanced notice of schedules, increased pay if hours change after schedules are posted, and the opportunity to work additional, available hours before new employees are hired. The Ordinance is scheduled to take effect July 1, 2017.

Employers Covered by the Ordinance

The Ordinance affects three categories of employers:

• Retail establishments with 500 employees worldwide;
• Quick and limited food service establishments with 500 employees worldwide (such as coffee shops and fast food restaurants); and
• Full-service restaurants with 500 employees worldwide and more than 40 locations worldwide.

The worldwide employee count includes all employees in a chain, franchise network, or integrated enterprise.

Employees Covered by the Ordinance

The Ordinance covers all hourly, non-exempt employees, including part-time and temporary employees, who work at least 50% of their hours for a given employer within the city of Seattle. For example, an employee who primarily works at an employer’s Bellevue location would not be covered by this Ordinance, even if he or she also occasionally works at the Seattle location.

Employees who are part of a collective bargaining unit may exclude themselves from the scope of the Ordinance through a collective bargaining agreement.

What is Required?

• Advanced notice of work schedule: Employees must be given a written work schedule at least 14 days in advance. The work schedule must be posted in a conspicuous location and posted in English and the primary language(s) of the employees in that workplace.
• Work schedule changes:
  • Employer-initiated schedule changes: Employers must provide timely notice of any changes in schedules, and employees may decline any shift not on the schedule without consequence.
  • Employee-initiated schedule changes: Employees must provide notice per the employer’s usual and customary notice requirements for foreseeable changes and as soon as practicable for unforeseeable circumstances. The Ordinance places additional restrictions on an employer’s ability to request or require the employee to find replacement coverage.
• Predictability pay: If an employer initiates a schedule change after the schedule has been posted, the employer must compensate an employee as follows:
  
  • Hours are added: Employers must pay employees 1 hour of additional pay to compensate them for schedule changes if (a) hours are added or (b) date or start/end times are changed with no loss in hours.
  • Hours are reduced: Employers must pay employees for half the hours not worked if the employer (a) subtracts hours from the schedule, (b) changes date or start/end time of shift resulting in loss of hours, or (c) cancels a shift.
  • There are also a number of exceptions to predictability pay (see “Practice Tips” below).
• On-call pay: If an employee is scheduled to be on call and is not called in, the employee must be paid for half the on-call hours scheduled.
• Access to hours: Employers must offer additional, available hours to current employees before hiring externally. The notice of available hours must be posted in writing for at least three consecutive days. The Ordinance exempts certain hiring programs from the “access to hours” requirements for programs affiliated with a government entity or external non-profit organization.
• Good faith estimate of hours: Employers must provide a written, good-faith estimate of the median number of hours the employee is expected to work each week and indicate whether they will be expected to work on-call shifts. The estimate must be provided upon hire and then updated annually or whenever there is a significant change in the work schedule. The employer is not bound by the estimate, but if there is any significant change, the employer must initiate an interactive process with the employee to discuss the change.
• Collaborative scheduling: Employees may request the right to provide input with regard to their schedule at the time of hire and throughout employment. Employers must engage in a timely and interactive process to discuss any requests. If a request is related to a “major life event” the employer must provide a written response and must have a “bona fide reason” for denying the request.
• Rest between shifts: Employers may not schedule an employee for a shift that begins fewer than 10 hours after a previous shift unless upon the employee’s request or with his/her consent. Even with employee consent, an employer must pay the employee 1.5 times the regular rate of pay for any hours worked less than 10 hours since the previous shift. For example, if an employee works until 10:00 p.m. and returns to work the next morning at 7:00 a.m. (only nine hours between shifts), the employer must pay the employee time-and-a-half for the first hour of the second shift. The remainder of the shift can be paid at the employee’s hourly rate of pay.
• Recordkeeping requirements: Employers must maintain certain scheduling records for three years, including, among other things: work schedules, good faith estimates of hours, the bona fide reason an employee’s schedule request was denied, and written notices for additional hours.

Enforcement and Remedies

Employers will be required to display a workplace poster regarding the new Ordinance. Like Seattle’s other labor standards ordinances (Minimum Wage, Paid Sick and Safe Time, Wage Theft, and Fair Chance Employment), the Secure Scheduling Ordinance contains anti-retaliation provisions, as well as penalties and fines. And, like the Minimum Wage, Paid Sick and Safe Time, and Wage Theft ordinances, the Ordinance will provide a private right of action for violations where damages could be up to three times the amount of wages owed.

Recommendations for Seattle Employers

• Employers who are covered by the Ordinance should look carefully at each of the provisions to determine which aspects of the Ordinance may conflict with the employers’ current practices. Employers with questions regarding compliance with the Ordinance are encouraged to seek legal counsel.
• Employers should become knowledgeable about when “predictability pay” is required and when it is not. Predictability pay is not required for a schedule change under the following circumstances:
  
  • Shift Swaps: Employees mutually and voluntarily agree to swap shifts. In order to avoid predictability pay, an employer’s assistance with the voluntary shift swap must be limited to helping an employee identify other employees who may be interested in providing coverage.
  • Mass Communication from Employer: Employee volunteers to work unscheduled hours in response to a written, mass communication from the employer. This can be used only to cover hours that are the result of another employee being unable to work, and the employer must make clear that accepting the hours is voluntary.
  • In-Person Request of On-Duty Employees: Employer may request, through an in-person group meeting with employees who are currently on-duty, that they stay later than scheduled to address unanticipated customer needs. Employees must consent to take the hours.
  • Offer of Additional Hours: Employer is required to offer additional hours to current employees before hiring. If employee accepts those hours, predictability pay is not required.
  • Employee-Requested Changes: If the employee requests the change, no predictability pay is required. But the employee’s request must be documented in writing to avoid predictability pay. This documentation must be retained for three years.
  • Hours Reduced for Disciplinary Reasons: If an employee’s hours are reduced due to disciplinary reasons, no predictability pay is required. However, the incident leading to the discipline must be documented in writing to avoid predictability pay.
  • Operations Issues: No predictability pay is required if operations cannot begin or continue due to threats, public utilities failures, natural disasters, etc.
• Employers should implement procedures to ensure compliance with the Ordinance’s record-keeping requirements. As discussed, the Ordinance contains numerous documentation requirements and these records must be kept for three years.
• Employers should review employee handbooks and policies to ensure compliance with the Ordinance.

The Seattle Office of Labor Standards (“OLS”) will draft rules for implementing the Ordinance and will likely publish FAQs and other guidance materials, such as those currently available for some of the other labor standards ordinances. Additional information will be posted on OLS’ Secure Scheduling page as it becomes available.