Philadelphia City Council Passes Fair Workweek Bill

On Thursday, December 20, 2018, Philadelphia Mayor Jim Kenney signed the Fair Workweek Bill, which will become effective on January 1, 2020.

The Bill covers retail, hospitality, and food service industry employers that employ at least 250 employees and have 30 or more locations worldwide, including chains and franchises. Covered employers will be required to follow “Fair Workweek Employment Standards” for hourly employees and seasonal and temporary workers, such as providing advance notice of schedules, rest time between shifts, and opportunities for additional work hours.  

The Philadelphia Bill follows similar predictive scheduling initiatives in cities such as New York, San Francisco, San Jose, Seattle and Washington D.C., as well as the state of Oregon. According to supporters of the Bill, the legislation is designed to provide stability in scheduling and working hours for employees to combat perceived concerns regarding the strain of unreliable, last-minute scheduling on workers and their families.

Here is a brief overview of the Philadelphia Bill’s requirements:

• Advance Notice of Work Schedule: A covered employer must post a work schedule including the employees’ shifts at the worksite, whether or not they are scheduled to work or be on call that week, no later than 10 days before the first day of any new schedule during 2020 and 14 days before the first day of any new schedule thereafter. Written notice must be provided in a conspicuous and accessible location.
  
  The employer must also provide notice of any proposed changes to the schedule as promptly as possible and prior to the change taking effect, and must revise the written work schedule to include changes within 24 hours thereafter. An employee can (a) decline to work any additional hours which were not included in the original posted work schedule, or (b) voluntarily consent to work such hours, in which case the consent must be recorded by written communication.
  
  Covered employers must also provide a written, good faith estimate of an employee’s work schedule upon hire and revise the good faith estimate when there is a significant change. The estimate must contain an average number of expected weekly hours over a typical 90-day period, whether on-call shifts are expected, and a subset of days and times the employee can expect to work or to not be scheduled.
  
  The employer must provide a new employee with a written work schedule on or before commencement of employment that runs through the last date of the currently posted schedule.
  
  All employees have the right to make work schedule requests without fear of retaliation.
• Predictability Pay: An employer must pay an employee Predictability Pay in addition to regular pay for each employer-initiated change to the posted work schedule after the advance notice deadline, subject to limited exceptions. Where the employer adds time to a shift or changes a shift with no loss of hours, the Predictability Pay rate is equal to one hour of pay at the employee’s regular rate of pay. Where the employer cancels or subtracts hours from a regular or on-call shift, Predictability Pay is calculated as no less than one half times the employee’s regular rate of pay per hour for any scheduled hours the employee does not work. Exceptions to the Predictability Pay requirements exist for certain employee-initiated shift changes, mutually agreed upon shift trades between employees, selected interruptions in the employer’s operations, changes that are made to the posted work schedule within 24 hours of the advance notice deadline, and in several other specifically enumerated situations.
• Right to Rest Between Work Shifts: The Bill protects an employee’s right to decline any work hours that occur less than nine hours after the end of the previous day’s shift or during the nine hours following the end of a shift spanning two days. An employee’s consent to work such shifts must be provided in written communication and can similarly be revoked through written communication at any time. Where the employee consents to work the shifts, the employer must pay $40 to the employee for each shift worked.
• Offer of Work to Existing Part-Time Employees: An employer must offer available work shifts to existing employees before hiring new temporary or permanent employees. The employer must provide written notice of available shifts for at least 72 hours, unless a shorter period is necessary. The employer may hire new employees or subcontractors if it provides notice of available shifts and no employee accepts available shifts within 24 hours of the posting period, if eligible employees confirm in writing they are not interested, or where existing employees have accepted a subset of the offered shifts and additional shifts remain. The legislation does not require the employer to offer employees work hours paid at a premium rate under state or federal wage and hour laws.

The Bill also provides agency authority for enforcement, investigation, and assessment of penalties and fines against violators. Significantly, the legislation allows for a private right of action and remedies such as reinstatement and restitution to the employee for lost wages and benefits, including Predictability Pay, as well as attorneys’ fees and costs.

The Bill may face a potential hurdle. House Bill 861 is currently under consideration in the Pennsylvania House of Representatives. House Bill 861 would preempt local labor ordinances in Philadelphia and throughout the Commonwealth; however, Governor Tom Wolf has vowed to veto the bill if passed. The proposed House Bill 861 arose after Philadelphia passed its paid sick leave law effective in 2015.

At this point, however, the Bill has been enacted and unless it is undermined by State legislation, Philadelphia employers will need to be in compliance by January 1, 2020. To that end, such employers should start making adjustments to move toward compliance with the Bill by using 2019 as a transition period to train scheduling managers and implement policies in line with the Bill’s mandates. For example, employers can: provide advance notice of work schedules by preparing and posting employee schedules two weeks in advance; revise the schedule to include any changes within 24 hours; make as few scheduling changes as possible within the two-week notice period; provide new hires with written, good faith estimates of their schedules; avoid scheduling employees for back-to-back shifts, such as a closing shift and subsequent opening shift; and offer available shifts to current employees before bringing in a new hire or temporary employee.