The Rise of Predictive Scheduling: What Employers Need to Know in 2024

Predictive scheduling is one of the latest trends in the ever-evolving labor and employment law landscape. Particularly targeting workers in the fast food, hospitality, and other retail environments, predictive scheduling is gaining momentum throughout the United States, while adding a layer of complexity to wage and hour compliance. In this article, we explore the current state of predictive scheduling and fair workweek obligations, how government regulation may be in play, and what to expect in 2024.

Key Considerations When Evaluating an Employer’s Predictive Scheduling and Fair Workweek Obligations

At a high level, predictive scheduling, also known as fair or secure scheduling, requires employers to post work schedules in advance — generally 14 days ahead of time — and limits the ability of employers to thereafter change an employee’s schedule. By providing employees with this information, predictive scheduling has the potential to enhance work-life balance, increase overall job satisfaction, and reduce turnover. However, for employers, staying in compliance when requirements vary across jurisdictions can be tedious and complicated.

Several jurisdictions have passed fair workweek laws, with New York City’s law being one of the strictest. It has a separate set of rules for fast-food and retail employers. For fast-food establishments, employers are required to provide a regular work schedule (RWS), whereas in other jurisdictions a good-faith estimate schedule is sufficient. The RWS must include the number of hours an employee can expect to work per week for the duration of the employee’s employment; the expected days, times and locations of those hours; and the date the regular schedule takes effect, which is different from a “weekly work schedule.” Also unique to New York City’s law is the “Just Cause Law,” which prevents employers from terminating fast-food employees without “just cause” in all but a few circumstances.

Other fair workweek laws are in force in Philadelphia and Chicago, and ordinances are in effect on the West Coast, including in Los Angeles; Berkeley, CA; San Jose, CA; Emeryville, CA; San Francisco; and Seattle. Some similarities among the jurisdictions are requirements to create and post written work schedules, maintain all scheduling records, obtain employee consent for schedule changes (add/remove hours), pay premiums for those schedule changes, and give current employees access to hours/shifts before posting jobs externally.

Employment Laws Could Be Subject to Government Regulation

With California being the birthplace of several prominent fast-food brands, it once again is leading the pack — this time in demonstrating how employment laws for the fast-food industry could be subject to government regulation. Viewed as a compromise between the restaurant industry and labor groups, the New Fast Food Labor Deal (AB 1228) was passed by the California state senate on Sept. 14, 2023, modifying the Fast Food Accountability and Standards Recovery Act (FAST Act) and repealing and replacing AB 257.

The compromise includes the following key elements: setting an initial minimum wage of $20/hour for fast-food workers (beginning on April 1, 2024); limiting the authority of any Fast Food Council (which would set wage and employment standards for the industry); eliminating efforts to extend joint liability to franchisors for legal violations by franchisees in California; and defunding the Industrial Welfare Commission.

What’s Next?

The rise of predictive scheduling and fair workweek legislation has seen a wave of state and local agency enforcement actions and class action lawsuits resulting from alleged noncompliance. As a first step, employers should consider:

• Are you a covered employer? Who is a covered employee?
• How far in advance and how much of a schedule should be announced? What constitutes a schedule change? Are there scheduling restrictions (e.g., clopenings)?
• Under what circumstances and at what rate is any predictability pay due?
• What are the recordkeeping requirements?
• What are the penalties and enforcement mechanisms?
• What steps need to be taken to avoid potential exposure or liability?

While it's expected that predictive scheduling will continue to expand into additional metro areas and states as we head into 2024, employers that aren't yet affected should pay close attention as their jurisdictions might adopt such laws next.

Ashley J. Hale is a partner with Morgan, Lewis, & Bockius LLP. She helps employers navigate a wide range of employment issues. Michael D. Schlemmer is a partner with Morgan, Lewis, & Bockius LLP and counsels businesses on all aspects of their employment law needs.