Blanchard & Walker Weekly

Topic of the Week  Predictive Scheduling: What is it and why is it important

  • Does the Fair Labor Standards Act (FLSA) address predictable scheduling?
  • Are there any federal laws that mandate predictable employee scheduling?
  • Are there any state laws that mandate predictable employee scheduling?
  • Are there protections against “clopening” (close one night, open the next morning) shifts? 

Predictive Scheduling: What is it and why is it important?

In some occupations, the inability to have a flexible and predictable schedule has made it increasingly difficult for workers to balance other commitments, like providing child care, getting or keeping a second job, and accessing or receiving needed medical care, among other things. This is an especially difficult situation for hourly workers who are living paycheck to paycheck.

Workers and advocates across the country are beginning to come together to advocate for better laws and more predictable schedules. If you can identify with the problem of an unpredictable schedule you may ask yourself whether the law protects you at all. Right now, not very much, but read below to see where the law is and where it’s going when it comes to predictive scheduling laws.

Does the Fair Labor Standards Act (FLSA) address predictable scheduling?
No, the FLSA does not regulate employee scheduling, with the exception of certain child labor provisions. According to the Department of Labor “…an employer may change an employee's work hours without giving prior notice or obtaining the employee's consent (unless otherwise subject to a prior agreement between the employer and employee or the employee's representative).”

Are there any federal laws that mandate predictable employee scheduling?
Currently, there are no federal laws that cover predictive scheduling. However, that could soon change. Recently, Congress introduced a bill called the Schedules That Work Act, which would allow employees to “request changes to their work schedule without fear of retaliation and ensure that employers consider these requests.”

Are there any state laws that mandate predictable employee scheduling?
Yes, currently, the state of Oregon is the first state to pass a predictable scheduling law. Some cities, such as San Jose, San Francisco, Seattle, New York City, and Washington, D.C. have also enacted laws related to predicative scheduling, which have added stability and predictability to worker’s income and schedules. Predictive scheduling laws are an emerging trend and employees should monitor local ordinances and state predictable scheduling enactments.

Are there scheduling protections to ensure that workers don’t have to do “clopening” (close one night, open the next morning) shifts?
Currently, there are no federal or state labor laws that govern the intervals between shifts. However, certain unions have advocated that their members be off a minimum amount of time between shifts.

On the state level, bills have been introduced in Maryland, Massachusetts, and Minnesota, which would require employers to give workers at least 11 hours between shifts. These bills would also require compensation if employees are called in before 11 hours have passed between shifts.

Thought of the Week

"The new AMA policy signals that physicians support the need and benefit of policies for family and medical leave that are inclusive of LGBTQ workers."

–Patrice Harris, M.D. President-Elect of the American Medical Association, which announced support for extending family leave policies to LGBTQ caregivers

Weekly Comic by Jerry King

Weekly Comic by Jerry King

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