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Philadelphia Worker Scheduling Law Takes Effect During Pandemic

March 31, 2020, 5:01 PM

New worker scheduling requirements will hit Philadelphia restaurant, retail, and hotel employers at the same time they’re managing through shutdowns and widespread layoffs spurred by the Covid-19 pandemic.

The city’s Fair Workweek ordinance takes effect April 1, although the city plans to postpone enforcement of one provision indefinitely as a form of Covid-19 business relief. For now, employers won’t have to give extra pay—termed predictability pay—for changing workers’ schedules on short notice.

The Philadelphia law is part of a small but growing trend of cities and states requiring employers to give hourly workers more predictable schedules, with the aim of protecting workers from difficulties such as fluctuating income and childcare challenges. Employee scheduling laws are already in force in a handful of locales including New York City, San Francisco, Seattle, and statewide in Oregon—with some offering limited exemptions to employers affected by the pandemic. A similar ordinance in Chicago is set to take effect July 1.

The laws faced industry pushback even before Covid-19 drastically changed business conditions. A New York City judge upheld the city’s scheduling law in February over legal challenges from restaurant and franchising associations. In Philadelphia, city officials already delayed their ordinance’s effective date once from Jan. 1 to give employers more time to prepare.

With Covid-19 now in the picture, industry groups have made a fresh push. For example, the NYC Hospitality Alliance has urged the city to suspend enforcement of its scheduling law, among other forms of relief to the ailing restaurant industry. So far the city has declined to halt enforcement.

“I’m not sure anyone anticipated this situation when this ordinance was drafted,” said Jeffrey Csercsevits, a management-side employment lawyer with Fisher & Phillips LLP in Philadelphia. “There certainly are a lot of questions” about how businesses will comply under these unusual operating conditions.

Advance Notice, Rest Between Shifts

The parts of Philadelphia’s ordinance taking effect will require large employers of service, retail, and hospitality workers to post employee schedules at least 10 days in advance, give workers at least nine hours rest between shifts, and offer existing employees the chance to pick up additional hours before hiring new workers to cover the need. Employers also will be required beginning July 1 to give employees quarterly “good faith estimates” of what their weekly schedules and average number of hours will be for the next 90 days.

The rules apply to employers with more than 250 employees and 30 or more locations worldwide, including chain locations and franchises, according to the city of Philadelphia’s website.

The city’s Office of Benefits and Wage Compliance will offer “compliance support for employers upon request and additional Q and A structured trainings,” said Lauren Cox, a spokeswoman for the mayor’s office.

While the pandemic creates extra uncertainty for employers and workers alike, worker advocate Rachel Deutsch from the Center for Popular Democracy says “fair workweek” ordinances help shield workers from bearing the full brunt of the uncertain times. The center is the organizer of the Fair Workweek Initiative.

“They need all the same protections that they’ve always needed, plus more,” Deutsch said.

Scrambling to Comply

Businesses in jurisdictions already subject to predictive scheduling requirements must juggle complying with regulations while scaling back business operations in response to the COVID-19 crisis.

Dozens of businesses and employees have reached out to the Bureau of Labor and Industries in Oregon, which oversees the only statewide predictive scheduling law in the country, according to agency spokesperson Jenny Smith.

In Seattle, the city posted a guide on when businesses can be exempted from its secure scheduling ordinance. If an employee tests positive for the virus and an employer ceases operations out of caution, the business is likely exempt from premium pay, according to the guide. The city said the law still applies unless “operations cannot begin or continue.”

But if a public official, including health and state officials, recommend against business operations, then the continuity clause likely applies, according to Seattle’s guide.

Val Hoyle, who oversees Oregon’s predictive scheduling law as the state’s commissioner of the Bureau of Labor and Industries, said in a statement to Bloomberg Law that she would take into account the global pandemic in enforcement but this isn’t a moment to take advantage of workers. She added that she would use the “full weight” of her office to prevent or remedy such a situation.

“I appreciate and recognize the good faith efforts of the majority of employers to do the right thing during this crisis, and I will exercise appropriate, common sense discretion based on the reasonableness of their actions given the circumstances,” Hoyle said.

Documentation Essential

Every U.S. jurisdiction with a predictive scheduling law now has in place coronavirus-driven state or local “stay home” orders in effect or directives closing nonessential businesses. Those orders are likely to trigger exemptions for predictive scheduling laws though some uncertainty can remain, especially as to when exemptions became effective.

New York City’s Office of Consumer Affairs said the city’s Fair Workweek Law doesn’t apply to businesses forced to close during the pandemic. But for businesses still open, the predictive scheduling law still applies.

“Fast food and retail workers who continue to work during this public health crisis deserve safe working conditions and fair compensation recognizing the extra risks they are assuming to provide critical services to other New Yorkers,” the agency said in a statement.

One of the most important things a businesses can do right now is keep extensive documentation on the scheduling decisions they made and why they made them, according to attorney Vlada Feldman of Seyfarth Shaw.

“It’s easy to focus on the big things, but it’s really the minutiae of the statutes, the exceptions, and the details across the jurisdictions that really matter here,” Feldman said. “For national retailers and chains, they can’t be looking at a ‘one size fits all’ policy. It’s probably not going to work.”

To contact the reporters on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com; Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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