Seattle Retail and Food Services Employers Beware: New City Ordinance Restricts Scheduling Practices

The Seattle City Council unanimously passed a bill on September 19, 2016, enacting secure scheduling regulations for large employers in the retail and fast food businesses. Seattle is the second city, after San Francisco, to adopt such regulations. Mayor Ed Murray announced he plans to sign the ordinance within the next two weeks. The Seattle Secure Scheduling Ordinance will take effect on July 1, 2017.

What is the intended purpose of enacting the Secure Scheduling Ordinance?

The ordinance is intended to address retail and food services employees’ unpredictable working conditions by adding stability and predictability to Seattle shift workers’ incomes and schedules.

Which employers will be affected?

The ordinance applies to Seattle retail and food services establishments with at least 500 employees worldwide, as well as “full service restaurants” that employ at least 500 employees and own or operate 40 full-service locations worldwide. Food services establishments include caterers, mobile food services, drinking places, cafeterias, buffets, and snack and nonalcoholic beverage bars. To determine whether an employer employs at least 500 employees, the city counts employees employed by chains, integrated enterprises, and franchises in the aggregate. Seattle considers separate entities that form an integrated employer a single employer under the ordinance.

Which employees are covered under the Secure Scheduling Ordinance?

The ordinance applies to full-time, part-time, and temporary employees who physically work at a location within the Seattle city limits at least 50 percent of the time. As a result, the ordinance may apply to employees who work for an employer at multiple locations, including locations outside the Seattle city limits.

Employees who are unionized and covered by a bona fide, effective collective bargaining agreement are not covered by the ordinance, provided the specific ordinance requirements “are expressly waived in the collective bargaining agreement, or in an addendum to an existing agreement” and the employees have ratified an alternative, secure scheduling structure that meets the ordinance’s public policy goals. If no such specific waiver exists, the ordinance applies.

What does the Secure Scheduling Ordinance require?

The ordinance mandates the following:

• Advance Notice. Employers must give employees their schedules at least 14 days in advance. Work schedules must include regular and on-call shifts, be written in both English and the primary language of the employee, and be posted.
• Good Faith Estimate. Employers must provide new employees with a written good faith estimate of the employee’s work schedule at the time of hire. Like advance notices, the notice must be written in English and the employee’s primary language. It must also include the median number of hours the employee will work per week and whether the employee is expected to work on-call shifts. Employers must provide a good faith estimate to existing employees annually or when a significant change in an employee’s work schedule occurs. Under the ordinance, employers are not bound by the good faith estimate but are required to initiate “an interactive process with the employee” to discuss any significant changes.
• Right to Request Input. Employees may identify limitations or changes in their work schedules as well as preferences for hours and locations, and have the right to decline work shifts or locations. The employer is required to engage in an interactive process with the employee to discuss the employee’s request. If the employee’s request is not due to a major life event, the employer shall engage in an interactive process to discuss the request and may grant or deny the request. If the employee’s request is due to a major life event, the employer may require the employee to provide verifying information. The employer may then deny the employee’s request in writing if it would impose a significant burden of additional costs to the employer or a detrimental effect on the employer’s ability to meet organizational demands.
• Interactive Process. The ordinance defines the “interactive process” as a timely, good faith process including a discussion between the employer and employee to reach a mutually beneficial work schedule arrangement.
• Rest Between Shifts. Employees are entitled to a minimum of 10 hours of rest between shifts. If an employee chooses or consents to start a shift less than ten hours after ending the last shift, the employer must pay the employee overtime at one and one-half times the employee’s scheduled rate of pay for the hours worked.
• Employer-Requested Work Schedule Changes. Employers must provide timely notice of any changes to the written work schedule either in-person or by telephone, text, email, or other electronic or written format. The employee may decline to work any requested additional hours.
• Employee-Requested Work Schedule Changes. Employees must use the employer’s usual and customary notice and procedural requirements for foreseeable changes to the work schedule, or as soon as practicable for unforeseeable circumstances. If an employee requests a work schedule change due to a protected reason where the employer is prohibited under local, state, or federal law from asking questions or the employee is protected from employer interference, the employer cannot ask or require the employee to find a replacement. On the other hand, if an employee requests a work schedule change due to an emergency or major life event not covered under local, state, or federal law, the employer may require written verification from the employee stating that the request is due to an emergency or major life event (but the employee does not have to explain the nature of the emergency or major life event) and the employer may ask—but not require—the employee to find replacement coverage. Finally, if an employee requests a schedule change for any other reason, the employer may require the employee to find replacement coverage.
• Compensation for Work Schedule Changes (Predictability Pay). Employers must compensate employees one hour of pay, in addition to earned wages, for employer-requested, added work hours or for changing the date or start or end time of work with no loss of hours. Employers must also compensate employees with one half times the rate of pay per hour where an employer reduces an employee’s work hours, changes the date or start or end time of a shift resulting in a loss of hours, cancels a work shift, or schedules the employee for an on-call shift for which the employee does not need to report to work. Employers are not required to provide additional compensation for the following circumstances:
  • employees mutually agree to swap shifts or cover for each other;
  • employees volunteer to work in response to a mass, written communication about available hours;
  • employees consent to work additional hours;
  • employee-requested changes;
  • reduction of employee’s hours due to disciplinary reasons;
  • the employer is prevented from beginning operations due to threats to employees or property;
  • the employer is prevented from beginning operations because public utilities have failed to supply services; or
  • the employer cannot begin operations because of a natural disaster.
• Existing Employees’ Access to Additional Hours. The ordinance requires employers to offer additional hours of work to existing employees before hiring new employees or subcontractors. To satisfy this requirement, employers must post written notice of available hours of work for at least three consecutive days, and the notice must contain the (1) job description and title; (2) required qualifications; (3) total work hours offered; (4) schedule of available work shifts; (5) whether the work shifts are reoccurring; and (6) length of time the employer anticipates requiring coverage of the additional hours. Additionally, employers must post the written notice in English and the primary language of its employees, as well as in a conspicuous, customary, and accessible location. The employer must hire an existing, qualified employee who responds to the offer. That employee has two days to accept the offer of additional work. If more than one qualified existing employee responds to the offer, the employer may distribute the extra hours among the interested employees.
• Employer Records. The ordinance mandates that employers retain written records that demonstrate compliance with the Seattle Secure Scheduling Ordinance for three years. Such records include, but are not limited to, good faith estimates of employees’ work schedules, written documentation regarding the employer’s bona fide reasons for denying employee-requested work schedule changes, payroll records, employer mass communications regarding availability of additional hours, and written documentation of employees’ discipline that results in a reduction in hours but does not incur additional compensation. Failure to retain adequate records will result in a rebuttable presumption that the employer violated the ordinance.
• Retaliation Prohibited. Employees who exercise their rights under the ordinance are protected against retaliatory conduct by employers. If an employer takes an adverse action against an employee within 90 days of the employee exercising his or her protected rights under the ordinance, a rebuttable presumption of retaliation is created.

How will the City of Seattle enforce the Secure Scheduling Ordinance?

The Seattle Office for Civil Rights is authorized to create applicable guidelines and rules, investigate and enforce suspected and reported violations, make findings of fact and conclusions of law, impose civil penalties and fines against employers, and seek liquidated and unpaid compensation damages in favor of employees as well as interest and attorneys’ fees and costs.

Civil penalties are assessed per aggrieved employee, and are $500 for first violations, $1,000 for second violations, and $5,000 for third violations. Fines are generally $500 per violation. Notably, the Office for Civil Rights may assess fines against an employer of $500 per record for failing to maintain records for three years and $1,000 per aggrieved employee for retaliation.

Can an employee sue an employer under the Secure Scheduling Ordinance?

Yes, employees also have a private right to sue under the ordinance and may be awarded unpaid compensation, interest, liquidated damages, reasonable attorneys’ fees and costs, and $5,000 if he or she was subjected to prohibited retaliation. Employees may also bring class action lawsuits against employers.

What can employers do to prepare for the ordinance?

To prepare to comply with the ordinance, Seattle employers may want to review the guidelines and rules when published later this year by the Seattle Office for Civil Rights, revise company policies and procedures, train members of management accordingly, and revisit and implement company recordkeeping practices to comply with the ordinance’s requirements.