The first legal challenge to predictable scheduling laws failed on February 18th, 2020.

State Supreme Court Justice Arthur Engoron in Manhattan said in his ruling that New York Cities predictable scheduling law the FWWL (fair workweek law) “appears to be a well intentions effort to protect vulnerable workers from exploitation by unpredictable scheduling. It also interferes with freedom of contract; distorts capitalism; and is surprisingly complex, arguably unwieldy, and only problematically enforceable.” the “court finds the plaintiffs have standing to challenge it, for the reasons they argue in their papers. However, their challenge falls flat”. So, how did we get here, what are predictable scheduling laws, and why is this a topic business owners need to be aware of?

In 2015 San Francisco was the first city to have a Predictable scheduling law on the books. By 2017, four more big cities had followed suite, Chicago, New York City, Philadelphia, and Seattle. The specifics of each region’s implementations vary, but the template followed is one where the employer has a window to post a work schedule. Any scheduling changes that occur past that window trigger a monetary penalty. Funds from the penalty are directed to the employee affected by the schedule change. The objective of these laws is to address inconsistent work scheduling practices. Practices like just in time and on-call scheduling. These practices allow employers to send home or call in employees in response to each day’s workload.

In 2017, Oregon also became the first state to pass a predictable scheduling law and in January 2020 new jersey legislator introduced their own predictable scheduling law. These laws are quickly spreading across the country and the retail and hospitality industries have taken the brunt of it. Predictable scheduling laws aren’t just spreading across regions. The industries covered by the laws have also begun to spread. The Chicago law for example that goes into effect on July 1, 2020, also covers building services, manufacturing, restaurants, warehouse services, and the health care employees. The effect of these laws on restaurants has been so much that in December of 2018, the International Franchise Association, the New York State Restaurant Association, and the Restaurant Law Center filed a lawsuit against New York City challenging the city’s predictable scheduling law (the fair workweek law).

Critics of predictable scheduling laws argue that these laws burden employers with higher administrative costs. On top of restricting the business owner’s ability to provide fast and flexible customer service. Many of the businesses affected by these laws like restaurants have low-profit margins and rely on having a dynamic workforce whose schedules can change with shifts in demand. Proponents of these laws argue that they are necessary to make work weeks for workers more predictable. Proponents also argue that minimum wage employees are the workers most impacted by on-call and just in time scheduling practices. They are also more likely to have multiple part-time jobs and must balance these kinds of dynamic schedules. This issue like most involving the relationship between employee and employer comes down to the same dilemma business owners have always struggled with. The question of how to keep their employees happy, energized, and engaged. While sustaining a profitable and efficient business.

On February 18, 2020, A New York trial judge dismissed the lawsuit filed against New York City and their fair workweek law. Allowing New Your City to keep the law on the books. In October 2019, legislation was introduced in Congress called the Fair Work Act that would make a flavor of Predictable scheduling the law of the land.

The expansion of predictable scheduling laws shows little sign of slowing down. So far, their validity has only been tested in the lower courts, so their future is still unclear. What is certain is that their national profile will grow as more cities and states try to pass them and businesses try to fight their implementation. To stay up to date on the latest legislative news issues affecting business owners, sign up for our monthly newsletter. If you’re interested in growing your knowledge on topics like benefits employee engagement, HR compliance, check one of our many resources like our webinars, podcast, and articles.