Seyfarth Synopsis. Progressive elected officials in Los Angeles and Sacramento have proposed laws that may soon require certain retail and other employers to provide employees with predictive scheduling or pay a price. To our blog authors, these impending developments bring to mind the adventures of Buddy in the 2003 Christmas comedy entitled “Elf.” See https://en.wikipedia.org/wiki/Elf_(film).

Faithful readers will recall our November 2017 piece on local predictive scheduling ordinances. There we noted that since Buddy the Elf’s time in retail, three local municipalities in California—San Francisco, Emeryville, and San Jose—passed predictive scheduling ordinances. Los Angeles now seeks to join the fray. Our prior piece also noted that we have yet to see a state-wide predictive scheduling requirement. That soon could change with the introduction of Senate Bill 850 by Senator Connie Levya.

Los Angeles City Council Moves for Fair Workweek Ordinance

Los Angeles City Councilmember Curren Price recently introduced a motion instructing the city attorney’s office to draft an ordinance (the “Ordinance”) that would require Los Angeles employers to provide employees with more stable and foreseeable hours. The measure was co-sponsored by City Council President Herb J. Wesson, Jr. and Councilmember Paul Koretz. Jessica Duboff of the Los Angeles Area Chamber of Commerce signaled that the Chamber will oppose the measure, stating that “[p]redictive scheduling is often actually restrictive scheduling, imposing a one-size-fits-all system that threatens the flexibility of employees and employers.”

Which employers would be covered? The motion directs that the Ordinance apply to all retail employers in Los Angeles with 300 or more employees globally, not just in Los Angeles. According to the LA Times, this ordinance would affect operations of numerous major retailers doing business in the expansive Los Angeles area. While other, similar ordinances cover fast food outlets, this Ordinance would be relegated to the retail world. (We know what you’re thinking, and no: this ordinance would not cover establishments serving the four main elf food groups—candy, candy canes, candy corns, and syrup.)

What is required under the law? Employers covered by the proposed Ordinance would be required to

  • provide employees with 14 days’ notice of their schedules,
  • provide employees the right to rest at least ten hours between shifts, a measure targeting so-called “clopening,” in which an employee closes the establishment and must return to open the same,
  • a good faith estimate of work hours at the time of hiring, including opportunities for full-time work and predictability pay or compensation for canceled shifts, and
  • provide employees a right to request schedule changes and ability to decline hours before and after schedule posting.

The proposed Ordinance would also forbid retaliation against workers exercising their rights under the Ordinance.

SB 850

SB 850, the so-called “Fair Scheduling Act of 2020,” was introduced by Senator Connie Levya on January 13, 2020.

Which employers would be covered? Grocery store establishments, restaurants, and retail stores would all be covered.

  • The bill defines “Grocery store establishment” as a physical store within the state that sells primarily household foodstuffs for offsite consumption.
  • “Restaurant” means any retail establishment serving food or beverages for onsite consumption.
  • “Retail store establishment” means a physical store within the state with more than 50 percent of its revenue generated from merchandise subject to the state’s sales and use tax.

What would be required under the law? As with the 2016 version, this bill would add Section 510.5 to the Labor Code to require employers to provide all employees with a work schedule at least seven calendar days prior to the employee’s first shift. The work schedule must be in written or electronic form and list all scheduled shifts (with start and ending times) for all employees in a specific department for at least 21 consecutive calendar days.

The bill would additionally require employers to provide “modification pay” to an employee (1) for each previously scheduled shift that the employer cancels or moves, (2) for each on-call shift where the worker is not called in, and (3) for previously unscheduled shifts that the employer requires an employee to work. The bill also proposes a number of exemptions to the modification pay requirement, such as where an establishment is rendered non-operational because of an uncontrollable natural force. Finally, SB 850 contains other, less substantive requirements, such as workplace posting, recordkeeping for at least three years, anti-retaliation provisions, and penalty provisions.

SB 850 closely resembles Senator Levya’s previous “predictive scheduling” bill—SB 878, the “Reliable Scheduling Act of 2016”—which died in committee. SB 878 in turn resembled AB 357—the “Fair Scheduling Act of 2015”—which died on the Assembly floor. SB 850 has been assigned to the Senate Committee on Labor, Employment, and Retirement and also to the Committee on the Judiciary. During 2020, the Legislature and Governor are more likely to ever adopt to adoptive invasive regulation of this nature. Consider, as an example, the lawmakers’ recent enthusiastic embrace of AB 5, which codifies revolutionary changes in the traditional nature of independent contracting.

While SB 850 is still only a bill—sitting on Sacramento’s Capitol hill like Buddy the giant Elf on his undersized father’s knees—the potential implication for employers are gigantic. As such, should SB 850 pass, employers should brace for potentially difficult compliance requirements. It is still very early in the legislative year, but we will maintain a focused eye on the legislation and will continue to write on this issue.

Workplace Solutions—I Like to Comply, Complying’s My Favorite

Employers have a lot to comply with in California. Should the Los Angeles and California measures pass, they would impose stringent new scheduling requirements, with concomitant potential statutory penalties. One important thing to do is to take the time think about best practices for compliance with any predictive scheduling law. Don’t hesitate to reach out to Seyfarth to help you determine whether you are a covered employer under any state or municipal predictive scheduling laws.