Philadelphia City Council voted 14-3 today to pass the "Fair Workweek Employment Standards Ordinance," instituting scheduling and predictability pay requirements for employers in the retail, food services, and hospitality industries. Mayor Jim Kenney pledged his support for the bill and is expected to sign it into law.
The bill is intended to provide predictable work schedules and other benefits for Philadelphia’s approximately 130,000 hourly employees in the targeted industries. Effective January 1, 2020, covered employers will become subject to the new requirements if they employ 250 or more employees and have at least 30 locations worldwide.
The new requirements include:
- Providing newly hired employees with a written, good faith estimate of the employee’s work schedule, including the average number of hours the employee can be expected to work each week;
- Giving consideration to employee work schedule requests, including requests not to be scheduled for certain shifts, days, times, or locations, and requests for more or fewer hours;
- Providing employees with a written work schedule at least 10 days before the first day of the schedule (increasing to 14 days on January 1, 2021);
- Notifying employees of any proposed changes to the posted work schedule as promptly as possible and prior to the change taking effect;
Employees have the right to decline to work any hours not reflected on the posted work schedule.
If a covered employer changes a work schedule after the required advance notice, it will owe the affected employee “Predictability Pay” on top of his/her regular pay for hours worked. Predictability Pay is one hour of pay at the employee’s regular rate for added time or a change in schedule/location with no loss of time, and half-pay for each scheduled hour not worked.
There are exceptions to the Predictability Pay requirements, including schedule changes requested by the employee or certain circumstances beyond the employer’s control such as threats, utility or transit shutdowns, natural disasters, and severe weather that disrupts transportation. There also is a 20-minute grace period built into changes in shift times before Predictability Pay is triggered.
The ordinance also creates the right to rest periods between shifts. An employee may decline, without penalty, any work that would occur within less than nine hours after the end of the previous day’s shift or during the nine-hour period following the end of a shift that spanned two days. If an employee works within less than the mandated rest period, he/she is entitled to $40 per shift.
The ordinance further mandates that work shifts are offered to existing employees before hiring new employees or subcontracting work. The offer must be made 72 hours in advance of the shift and, subject to certain conditions, must be awarded to employees who offer to work, unless it would result in overtime costs to the employer.The ordinance applies to bargaining unit employees, but requirements may be waived in collective bargaining agreements. Any waiver must be explicit and stated in clear and unmistakable terms and may last only for the contractual duration of the agreement. Unilateral implementation of a waiver is prohibited.
The ordinance also contains a posting requirement and record retention requirements, including posted work schedules and offers of additional shifts. In addition, the ordinance anticipates that employers will adopt certain policies, such as a policy for offering and distributing work shifts under the ordinance. Employers also may want to consider a policy addressing other aspects of the ordinance, such as employees exchanging shifts and a process for making and responding to schedule requests.
It is unlawful to interfere with, restrain, or deny the exercise of protected rights under the ordinance. Retaliation also is prohibited, with a rebuttable presumption of retaliation for any adverse action within 90 days of an employee exercising protected rights, unless due to documented disciplinary reasons constituting just cause. The ordinance also provides for a private right of action against employers, and for penalties including back pay, presumed damages, liquidated damages up to $2,000, attorneys’ fees, and equitable relief.
Attorneys in Ballard Spahr’s Labor and Employment Group routinely advise and assist our clients in drafting policies and procedures related to regulatory compliance issues. If you are in a covered industry and we can assist you, or answer questions about the new Philadelphia Fair Workweek Employment Standards Ordinance, please contact Brian D. Pedrow or any other member of the Labor and Employment Group.
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