Predictive Scheduling Marches Onward

Operating a business is no easy task. Commerce ebbs and flows in unpredictable ways. A restaurant might find itself strangely slow on a Friday night or a factory might see a sudden decline in orders. In order to avoid the financial burden of paying someone who is not working, various industries have developed practices designed to minimize payroll. For example, waitstaff is often sent home before a shift is over sent if there are not enough customers to serve.

Employees who are subject to these policies are of course also negatively impacted by the ebbs and flows. A worker might be counting on eight hours of pay to be able to purchase medicine. So, in some areas of the country, politicians have weighed the damage to business versus the damage to workers and passed laws requiring businesses to bear more of the brunt of these slow-downs by requiring the them to pay something to the employees for the time lost. This movement, known as predictive scheduling, continues to pick up steam around the country.

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Predictive Scheduling Is Spreading

To date, predictive scheduling ordinances are localized, and thus vary greatly from city to city. However, the laws generally require businesses to pay employees whose shifts are cancelled at the last minute or cut short some amount of the wages the employees expected to earn. They also often place an obligation on business to provide schedules well in advance.

Chicago has become the latest municipality to pass a predictive scheduling ordinance, which will take effect in July. The scope of this ordinance is stunning:

  • Employers must provide employees their schedule a minimum of 10 days in advance.
  • An employer cannot take adverse action against an employee who refuses to work nonscheduled hours.
  • Employees may also refuse to work a shift if they have had less than a 10-hour break from their last shift.
  • In order to change an employee’s schedule after the deadline for notice, the employer must pay the employee one hour of extra pay.
  • And if an employer cancels an employee shift with less than 24 hours’ notice, the employer must pay the employee 50% of the regular rate of pay for the hours that were canceled.
  • Further complicating matters, an employer must offer additional shifts to current employees before it can use temporary or seasonal workers to handle their shifts.

Chicago now joins seven other municipalities — California’s San Francisco, Berkeley, Emeryville and San Jose, as well as Seattle, New York, and Philadelphia — as having predictive scheduling ordinances. At the state level, Oregon and Vermont have such laws.

What Should You Do Now?

Unfortunately, compliance with predictive scheduling laws is far from easy. Larger employers with locations in multiple jurisdictions tend to be the most affected, although even smaller employers can find themselves in a position that requires a full overhaul of their current staffing model. Accordingly, it’s important to keep a few points in mind.

Location audit. The piecemeal framework of predictive scheduling laws means that you may have multiple locations subject to different predictive scheduling requirements, so conduct an audit of your locations. As a result, a centralized staffing model can quickly become outdated, or even worse, a liability. Location-specific policy changes may need to be made, and managers may require retraining on how to handle staffing shortages.

The domino effect. No employment law exists in a vacuum, and predictive scheduling laws are no exception. Implementing predictive scheduling models will often impact other aspects of your business and, in some cases, could create unforeseen liability traps. For example, in San Francisco, forgetting to tell your payroll company to separately delineate the “Predictability Pay” scheduling change penalty on your employees’ wage statements could saddle you with a host of unexpected labor code violations and class action demand letters—all for a simple oversight.

Be creative. Consider novel and creative approaches. For example, some large companies have implemented the use of scheduling apps. In addition to viewing pre-posted schedules, employees can use the apps to swap shifts with coworkers or sign up for unfilled shifts in upcoming weeks. Although, even without apps, voluntary schedule swapping and sign-up policies are both phenomenal ways to reduce, and even eliminate, the need for last-minute scheduling changes — all while boosting employee morale.

Depending on the specific ordinance, having a temporary labor agency partner may assist some businesses. To the extent a company has an unexpected staffing shortage, it may be able to ameliorate those effects through having swift access to temporary help. But at least under the Chicago ordinance, this has been made a last resort.


Ultimately, when it comes to employment policies, there is rarely a “one size fits all” approach. What’s right for one company may not be right for another. As a result, it’s important to keep up to date on the newest changes in both law and compliance strategies. In the modern day, employment laws are changing at an ever-increasing pace. If the recent rise in predictive scheduling laws hasn’t hit your state or city just yet, it soon may.


Ed Harold

Ed Harold
Ed Harold is the regional managing partner in the Fisher Phillips New Orleans office and chair of the firm's Retail Industry Practice Group. His practice is primarily devoted to assisting employers in managing employee attendance and leave issues.

Ed Harold

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