What You Need to Know About Predictive Scheduling and the Law

What is predictive scheduling?

Predictive scheduling is when employers provide employees with their schedules in advance. Predictive scheduling can help employees estimate their expected weekly or monthly pay and enjoy a better work-life balance. This scheduling technique can significantly benefit the following workers: 

• Employees whose schedules frequently fluctuate
• Part-time employees who don’t work full workweeks
• Employees who work for an hourly wage 

Predictive scheduling is largely a response to the challenges associated with on-call scheduling. This workforce management method avails hourly workers when needed to accommodate influxes of customers at irregular times. On-call scheduling gives business owners flexibility, but it comes at the expense of predictable employee schedules.

In the past few years, predictive scheduling laws and regulations have become more common, especially in industries where part-time jobs and minimum wage positions are prominent.

How does predictive scheduling impact employees?

Any employee who has experienced an unpredictable work schedule knows how challenging it can be. Without stable pay or a structured work-life balance, employees often can’t schedule crucial responsibilities like child care or medical appointments.

Predictive scheduling legislation seeks to ameliorate these challenges by giving employees a window into their upcoming work schedule. Some of these laws ban on-call scheduling altogether and require employers to give employees their schedules a week or two in advance. Others require that employers offer compensation for on-call shifts that never materialize.

“[Predictive scheduling] laws give hourly employees fair opportunities and the ability to achieve an unprecedented work-life balance,” explained Steven Power, president of CommentSold and former president of RollKall Technologies. “By knowing their schedule beforehand, employees have more control for how to plan their lives. This is especially necessary for workers with family and other ongoing commitments. Predictability leads to employee retention and can be a boon for talent recruitment.”

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Predictive scheduling offers benefits to employers.

Adopting a predictive scheduling policy goes beyond compliance and can even benefit employers. For example, an effective predictive scheduling program helps employers attract and retain top talent while reducing turnover and new-hire training costs. 

“More predictable scheduling can also lead to happier, more engaged employees,” advised Atif Siddiqi, founder and CEO of Branch. “Without the added concerns of an unpredictable schedule, employees are less likely to have stress that will impact their work productivity. This can lead to decreased turnover for employers as well, as the cost of replacing an hourly employee is about $2,500.”

While it represents an adjustment to current practices in many cases, predictive scheduling also establishes a routine that helps managers more effectively anticipate and plan for spikes and dips in business activity.

Predictive scheduling and the law

Many cities and more than a dozen states have proposed regulations around predictive scheduling or are considering legislation that would create a predictive scheduling policy. As an employer, it is your responsibility to comply with local and state business regulations. Failure to do so could lead to financial penalties and lawsuits.

States and cities where predictive scheduling laws apply

Currently, Oregon is the only state with statewide predictive scheduling laws. Oregon employees have the right to a 14-day scheduling notice, good-faith scheduling estimates upon hiring, and to refuse shifts scheduled within 10 hours of each other (or accept time-and-a-half payment). These rules apply to companies with at least 500 employees operating in the hospitality, food service and retail industries.

Besides Oregon, eight cities have enacted predictive scheduling laws:

• Emeryville, California: Employees have the right to a 14-day scheduling notice and compensation for late employee schedule changes. Employers must pay employees time and a half if two shifts are scheduled within 11 hours of each other (for every hour within that 11-hour window). These rules apply to companies operating in retail and fast-food industries with 20 or more employees locally and 56 or more employees worldwide.
• Chicago, Illinois: Employees working in healthcare, hotels, manufacturing, building services, retail and food service who earn $26 per hour or less (or less than $50,000 per year) have the right to a 14-day scheduling notice and compensation for late changes to their schedules. This law applies to employers with at least 100 employees, nonprofits with more than 250 employees, and restaurants with more than 250 employees and 30 locations.
• New York City, New York: Fast food companies with 30 or more U.S. locations are required to have good-faith scheduling estimates upon hiring new employees. They should also provide a 14-day scheduling notice, notify employees about canceled shifts no less than 72 hours in advance, and compensate employees for late changes. Retail employers with 20 or more sellers must post schedules at least 72 hours before any shift and can’t implement on-call shifts.
• Philadelphia, Pennsylvania: Employees have the right to a 14-day scheduling notice, compensation for late schedule changes, and the right to refuse shifts scheduled within nine hours of each other. (If the worker agrees to work within this nine-hour time period, the employer must obtain their consent in writing and compensate the employee $40 for each shift.) Employers must also offer a good-faith schedule estimate upon hiring. These rules apply to retail, hospitality and food service companies with more than 30 locations and 250 employees.
• San Francisco, California: Employees have the right to a 14-day scheduling notice and good-faith monthly scheduling estimates. This law applies to retail stores, bars, restaurants and liquor stores. It also applies to sales and service providers, such as banks or financial institutions, with 40 or more locations worldwide.
• Seattle, Washington: Employees have the right to a 14-day scheduling notice, good-faith scheduling estimates for each month, and to refuse shifts scheduled within 10 hours of each other (or receive time-and-a-half payment if accepted). These rules apply to retail and food-service businesses with at least 500 employees worldwide.
• Berkeley, California: Employees are entitled to schedules 14 days in advance and 24 hours written notice of any changes. Employees can decline any shift amendments requested less than two weeks in advance, and employers must provide predictability pay. Restaurants with 10 or more local employees, and at least 100 globally, must follow this law. Additionally, the rule covers nonprofits with 100 or more employees, along with retail, healthcare, manufacturing, hotel or warehouse service companies with at least 56 employees.
• Los Angeles, California: Employees who work two or more hours per week for retail businesses with 300 or more employees are protected under this law. Employers must provide schedules 14 days in advance and give a good faith hourly estimate upon hiring. Current employees who want an estimate also have the right to request one with 10 days’ notice. Unless employees consent in writing for time-and-a-half pay, shifts must be scheduled with at least 10 hours of rest in between. 

This is not a definitive list of predictive scheduling laws. These laws and requirements are subject to change. Consult an attorney or check with your city or state for comprehensive predictive scheduling law requirements.

States that have prohibited predictive scheduling

A few states don’t allow predictive scheduling; they prohibit their local governments from passing predictive scheduling laws.

The following states that currently prohibit predictive scheduling:

• Arkansas
• Georgia
• Iowa
• Tennessee

Remember that predictive work schedule laws change frequently; the guidelines within these states may eventually change.

What industries does predictive scheduling impact?

Predictive scheduling laws target businesses in industries where:

• On-call scheduling is common
• Employees are classified as hourly (not salaried)
• Employees receive minimum wage

Predictive scheduling laws also focus on industries that reserve a portion of their hourly employees for activity fluctuations. Examples include the following:

• Retail businesses during holiday seasons
• Restaurants with anticipated peak hours
• Seasonal businesses in the hospitality industry 

How to implement predictive scheduling

You can follow several best practices to successfully implement predictive scheduling in your workplace.

1. Audit your locations.

The first step to implementing a predictive scheduling policy is auditing your locations. Employment laws vary by jurisdiction, so you may need to follow various guidelines, especially if you have multiple business locations. A one-size-fits-all policy will likely not work here, since each location will have different needs. Once you audit your locations, you can create localized policies to accommodate their needs.

2. Understand the laws that govern your state and city.

Understanding what predictive scheduling laws govern your business is critical to implementing a legally compliant policy. Additionally, you must be aware of laws unique to your industry. You may want to perform a competitive analysis to see what type of scheduling policies your competition has.

3. Leverage employee scheduling software.

Implementing a predictive scheduling policy could pose unique challenges at first. However, with the help of careful planning and rapidly developing software, including machine learning algorithms, many employers will likely find it easier than they initially thought to carry out such a policy.

“For smaller business owners using manual scheduling processes, the rollout of these laws can cause confusion, which leaves themselves open to risk around noncompliance, and the consequences of rectifying noncompliance can be expensive,” Power explained.

For those businesses, Power advised against using manual scheduling processes. Instead, business owners should use online employee scheduling software, which can ease the burden of adopting a predictive scheduling policy.

“Most scheduling software has the ability to auto-schedule, which ensures that the employer is meeting all of the laws across all locations,” Power said. “The online platform also enables employees to check and change their schedules from anywhere as well as pick up additional shifts if they’re eligible, which gives the employee more power and control over their schedule, resulting in an overall happier and more productive workforce.”

4. Communicate with your workforce.

Communicate scheduling changes to your workforce, and train them on using any automated systems you might implement to support it. As with any significant changes to business processes, communication is vital. Transparency can help ease your staff through any changes and reduce the obstacles you encounter while adapting to the new system.

Predictive scheduling isn’t going away

Developing and adopting a seamless and easy predictive scheduling policy can result in happier employees, reduced turnover costs, and a more efficient workflow that still meets the fluctuating needs of your business. Predictive scheduling isn’t going away, but it doesn’t have to be a challenge. In fact, it could be an excellent opportunity to plan and streamline processes in a way that benefits your entire organization. Stay current on local regulations to ensure your company complies with the often-changing predictive scheduling legal landscape. 

Natalie Hamingson contributed to this article. Source interviews were conducted for a previous version of this article.