Fair Scheduling Trend

Fair scheduling, also referred to as restrictive or predictable scheduling, is a current trend in employment law.

San Francisco, New York City and Washington, D.C. are a just a few of the cities that have already adopted fair scheduling laws addressing what advocates describe as the unfair and unpredictable scheduling practices of many employers. Other cities and states, including New Jersey, may also be considering some type of fair scheduling ordinance.

The Pros and Cons of Fair Scheduling

In certain industries, particularly retail and food service, employees are often expected to be on-call or are given short notice of their work schedules. According to the National Women’s Law Center (NWLC), workplaces often do not take employees’ needs into consideration. More than 21.6 million workers in low-wage jobs are subject to strict yet unpredictable schedules, rendering them unable to take on a second job, take time off for necessary medical care, or attend to caregiving responsibilities. According to NWLC, workers commonly reported having little say in their schedules, having unpredictable, unstable schedules and working part-time involuntarily.

Fair scheduling would offer workers predictability and stability. However, it would likely deprive them of the flexibility that inherently comes with the retail and restaurant industries. Swapping shifts, covering shifts and part-time holiday employment would all be things of the past if fair scheduling laws were enacted. Instead, employers would be required to give workers advance notice of their shifts (usually at least 14 days) or face financial penalties.

The New Jersey Schedules that Work Act

The New Jersey Schedules that Work Act – a law that would allow employees to have more control over their work schedules – has been introduced to the legislature for the past two years. The Act would allow employees to make scheduling requests without employer retaliation. Additionally, requests made to fulfill caregiving responsibilities, to work a second job, to pursue education and workforce training or to address a serious personal health condition would have to be granted by the employer unless there is a bona fide business reason not to do so. Bona fide business reasons include an employer’s significantly diminished ability to meet customer demand or an insufficiency of work within the time periods requested by the employee.

In the event that an employee is sent home early from a scheduled shift, the Act would require that the employee be paid for a minimum of four hours of work or the number of hours in the shift, whichever is fewer. Employees would also be entitled to an extra hour of pay if they are required to work a shift with nonconsecutive hours with a break of more than one hour between work periods. Finally, the Act would require employers to inform employees, upon hiring, the minimum number of hours they will be required to work. For any changes to go into effect thereafter, employers would be required to give employees two-weeks’ notice.

ABOUT THE AUTHOR: Richard D. McComber
Richard D. McComber was admitted to the New Jersey and Federal District Court Bars and then served as a Captain in the United States Army, Judge Advocate General Corps, for three years in Washington, D.C. Upon his discharge from the Army, he joined the law firm of Giordano, Giordano & Halleran, later Giordano, Halleran & McOmber. Thereafter, he left that firm to start a new firm with his wife, Adrienne H. McOmber. His primary practice areas include business law, employment law, estate planning, land use, real estate, sexual harassment and hostile work environment, wills, and trusts.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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