Predicting a Scheduling Nightmare

If you operate a substantial retail operation or grocery in the city of Los Angeles, here’s a prediction for you: You’re going to be subject to a predictive scheduling law soon. That’s an easy prediction because the city already is in the preliminary stages of creating such an ordinance. Details aren’t set, but the city seems intent on going forward with it. If you’re unfamiliar with predictive scheduling, it means you must give workers at least two weeks’ notice of their shifts. There are penalties for canceling shifts and for calling people in at the last minute. The L.A. ordinance – which it is calling the “Fair Work Week” law – would apply to retail businesses with 300 or more employees systemwide. Interestingly, it would not apply to fast-food restaurants, but it would apply to other retail operations including groceries but not banks. Again, the ordinance hasn’t been written or at least not released, so most provisions aren’t known. The ones mentioned above could change. Nonetheless, businesses and business groups already are upset and mobilizing. Since it seems apparent that some version of a predictive scheduling ordinance will pass, they’re mostly in damage-control mode, hoping to blunt any egregious provisions. The business community’s big concern: The city will stick to its usual impulse to pass a pleasant-sounding ordinance that appears to be aimed at a few bad actors but will end up abusing many good businesses. We’ll get back to that aspect in a moment. First, let’s drop back and review how we got here. A study was done last year by the UCLA Labor Center and the union lobbying group called LAANE, or Los Angeles Alliance for a New Economy. The study said retail workers have unpredictable workweeks that can change at last minute, making it difficult to predict their income or to arrange child care. It claimed that 77 percent get less than one weeks’ notice of their schedule. “L.A. retail workers live in economic uncertainty, making it difficult to predict their income, make time for school, or care for their families,” Councilmember Curren Price was quoted as saying when he introduced a motion in March to direct the city attorney to draft a the fair work week ordinance. A few cities, including New York, Seattle and San Francisco, in recent years have adopted predictive scheduling that sets out provisions and penalties. In New York, for example, employers have to pay $500 for the first violation, up to $750 for the second and up to $1,000 for each subsequent one. The penalties are imposed on a per- employee and per-occurrence basis. In many cases, employers have to pay workers extra if they’re called in to work an additional shift within the two-week period after the schedule was set. It seems like a reasonable accommodation for an employer to come up with a schedule two weeks in advance. I’m sure they can do so. And if I were a retail worker, I know I’d certainly want to schedule my life around my shifts at least two weeks out. But there are at least two minefields. One is that the employees are the ones who often disrupt schedules. If one calls in sick or simply doesn’t show up for work, that means the employer must call in reinforcements. Under a predictive scheduling ordinance, that means the employer likely would have to pay extra every time an employee fails to show up. And you can see how some employees – not all but some – would quickly figure out how to game the system. If Employee A calls in sick an hour before her shift begins, that means the boss has to ask Employee B to work an emergency shift – and get paid, say, four hours’ worth of extra pay. The next day, Employee B calls in sick, forcing the boss to call in Employee A, who gets the extra pay. If this occurred regularly, the employer would be looking at dramatically higher labor costs, on top of the escalating minimum wage now required in the city. Another potential problem: The possibility that the ordinance may allow for what’s called a private right of action. That means the employees can sue the employer for any breaches, not just turn the matter over to the city for enforcement. That can result in ruinous legal expenses for the business and a godsend to lawyers representing employees as well as employers. If done correctly, a predictive scheduling ordinance should do two things. First, it should outline a system where workers have a clear sense of their schedules at least two weeks out and preferably more along with some additional protections. Second, it should do so in a way that that protects the business from being shaken down. I think we can confidently predict the first will happen. But alas, knowing this city, not the second.