Predictive Scheduling has become a hot topic in the restaurant industry. As a growing number of municipalities propose and approve legislative changes around scheduling practices, many restaurateurs are wondering: how will predictive scheduling impact my business?
This guide is designed to help you stay in front of Predictive Scheduling changes and make sure your restaurant is fully compliant.
What is Predictive Scheduling?
Predictive Scheduling — also known as fair scheduling, secure scheduling, predictable scheduling, or restrictive scheduling — is legislation designed to protect shift workers in the hospitality and retail sectors by mandating scheduling practices. While ordinances may vary between states or municipalities, most will include stipulations like:
- How far in advance staff must know their scheduled shifts.
- Predictability pay for schedule changes or cancellations.
- Minimum hours between shifts (to eliminate the contentious clopen).
- “Good faith” hours estimates for new hires.
- Employee rights to refuse or request shifts.
- Private rights of action.
Recommended Reading: The 11 Employee Scheduling Best Practices + Tips for Restaurants
Which cities have enacted Predictive Scheduling legislation?
As of February 2022, seven major U.S. cities have put Predictive Scheduling laws into effect:
- Berkeley, California.
- Chicago, Illinois.
- Emeryville, California.
- New York City, New York.
- Philadelphia, Pennsylvania.
- San Francisco, California.
- Seattle, Washington.
Oregon's Predictive Scheduling legislation makes it the only state with a state-wide Predictive Scheduling law - but it may not be the sole one for long. Even the U.S. Department of Labor, Wage and Hour Division is investigating scheduling entitlements — proof that predictive scheduling is here to stay.
Predictive Scheduling legislation: An overview
Who it impacts
Formula Retail Employee Right Ordinance (2014)
Franchises with 40+ locations globally and 20+ employees in San Francisco
- 14 days' notice for schedules - Written estimates of minimum shifts per month - If on call and not required, employees must be paid 2-4 hours - At least 3 years of shift records
Secure Scheduling Ordinance (2016)
Retail and fast food operations with 500+ employees globally, and full-service operations with 500+ employee and 40+ restaurants globally
- 14 days' notice for schedules - Minimum 10 hours between shifts - If an employee is on call and not required, he/she is paid half the hours scheduled - At least 3 years of shift records
New York City
“Fair Workweek” Package (2017)
Restaurants with 30+ U.S. locations
- Minimum 72 hours' notice for schedules - Minimum 11 hours between shifts - Employees scheduled for 20+ hours of work every two weeks - At least 3 years of shift records
Fair Workweek Employment Standards (2018)
Restaurants that employ 250 or more people and operate at least 30 locations worldwide.
- Minimum 14 days notice for schedules - Good faith scheduling estimates - Minimum nine hours between shifts - Two years of shift records - Predictability pay for violations
Fair Work Week Act (2017)
Businesses operating in Oregon with at least 500 employees worldwide.
- Minimum 14 days notice for schedules - Predictability pay for violations - Minimum 10 hours between shifts - Voluntary standby list for on-call work
Where did Predictive Scheduling come from?
The food service industry has recently been hit with a wave of employee-friendly legislation. Beyond Predictive Scheduling, there is also the Fight For Fifteen - a push to increase the national minimum wage to $15.00 per hour. Understandably, changes like these put pressure on restaurateurs to keep up with constant changes while optimizing labor costs and, of course, running a profitable operation.
What's motivating these legislative changes? Ultimately, they are efforts to promote stability, security, and a healthier work-life balance for workers. According to a study by the Economic Policy Institute, about 17% of the American workforce deal with unstable shift schedules on an ongoing basis, a reality that increases the likelihood of work-family conflict and working longer hours each week to make ends meet. For these employees, it can be next to impossible to plan for childcare, social activities, or do simple errands like running to the bank or grocery store.
For some, there is inherent appeal in restaurants' traditionally flexible schedules; for others, it precludes wage stability and a balanced lifestyle. The Bureau of Labor Statistics found that less than 20% of early career adults paid by the hour felt they had control over their schedules. On average, schedules fluctuated by more than a full, 8-hour working day per month; this loss hits hard for someone working for minimum wage.
While it's clear the ways employees benefit from Predictive Scheduling legislation, the good news is there are advantages for employers, too. In 2017, the average restaurant published their staff schedule only 2.44 days in advance, leaving little room for changes to be made. Sending out schedules two weeks in advance will likely require managers to change up their approach, but this up-front time investment also provides some predictability in terms of wages and operations. What's more, involving employees in the scheduling process can improve job satisfaction, which may in turn impact retention rates (a huge win for restaurants given the costs associated with employee turnover).
How to Prepare for Predictive Scheduling
As mentioned, the introduction of Predictive Scheduling legislation creates opportunities for employees to take a more active role in building and managing their schedules. For example, part of this new process requires that employers give “preferential treatment” to requests concerning transportation, childcare, other work, and training; however, a lack of clarity around how to prioritize these requests can be both problematic and confusing.
Whether your city has already seen legislative reform or you're keen to take a front foot on the issue and start to modify your scheduling practices (for example, some franchises have started moving away from “on-call” scheduling and work), staying ahead of the curve will protect you and your restaurant from legal recourse.
Recommended Reading: Five Signs You Need to Switch from Excel to Scheduling Software
How far in advance do you have to share employee schedules?
The advance notice of schedules is contingent on where each restaurant is. For most places with a fair workweek law, schedules must be shared at least 14 days before a shift. Locations included in this time frame include Emeryville, New York City, Oregon state, Philadelphia, San Francisco, and Seattle. In Chicago, notice must be given at least ten days in advance.
What if you have to change the schedule?
Most Predictive Scheduling ordinances allow for employee-initiated changes and shift swaps without penalty. However, if employers initiate a change to a worker's schedule within the predictive threshold required by law, there are penalties associated.
For example, in New York, restaurants need to provide premium pay to employees and the option for them to reject these shifts. Depending on the outcome of this request and how close the change is to the shift, premium pay can range from $10 to $75 in addition to the employee's pay for hours worked.
Remember, each area has its own rules for scheduling changes after the approved time window - but they tend to come with extra pay and the chance for employees to reject the offer.
How do you deal with “Clopen” shifts?
Clopen shifts are great when you're short staffed, but not so great if you are staff - as they can rob you of the right to rest (which most Predictive Scheduling ordinances grant). For areas with these ordinances, rules regarding clopens typically require consent from employees in addition to premium pay.
For instance, in Philadelphia, employees must agree and be provided $40 in premium pay if asked to work without a nine-hour break over two days. In Oregon, employers must provide a ten-hour break and provide time-and-a-half pay (again, only if employees consent).
Like all Predictive Scheduling legislation, the length of rest periods and the premium pay for working clopens varies by jurisdiction, so make sure you're following the rules for your region.
The Top Way to Implement Predictive Scheduling and Stay Compliant
Being compliant not only helps your business save on premium pay, but also stay ahead of any potential infractions. Remember -hefty lawsuits and fines await restaurants that break the laws of Predictive Scheduling.
First, equip your restaurant with software that ensures labor compliance. For example, 7shifts workforce management software ensures you're adhering to local laws. You'll get alerts if workers are headed into overtime or scheduled to work a clopen so you can adjust and cut labor costs. Additionally, you'll be able to electronically share schedules to all employees two weeks in advance and keep records of their hours worked, which Predictive Scheduling ordinances often mandate.
A centralizing scheduling platform is very useful, because it will help an employer to create schedules in a more orderly fashion, allow employees to access schedules electronically, communicate schedule changes to employees, provide organized record-keeping, and help ensure that the employer complies with the applicable notice requirements under any applicable Predictive Scheduling laws.
Remember, not all restaurants are affected in cities and states with Predictive Scheduling requirements, so it's essential to audit your locations if you're in an area with these laws. Based on their criteria, determine if you'll need to follow these ordinances and be sure to alert employees so they're aware of their rights.
Frequently Asked Questions
What are the employee benefits?
Through Predictive Scheduling, employees gain two main benefits. First is financial security, as workers will know how many hours they are to work on average. This certainty helps them with monetary stability. Second, employees benefit from knowing their schedules two or more weeks in advance, allowing them to plan their personal matters accordingly.
What are the employer benefits?
Employers benefit from more organization and a more productive workforce as a result of Predictive Scheduling. According to David Reischer, Attorney and CEO of LegalAdvice.com, “employers benefit from a lower turnover rate when workers have greater job satisfaction by knowing their schedule.” Predictive scheduling yields a more respected and well-rested workforce, which is good for the employee and customer experience as well.
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