I have begun many absence-management seminars for employers by asking them whether they can require an employee to come to work. The answer, of course, is “it depends.” Family and medical leave laws, laws requiring accommodation, paid sick leave laws and various other laws give employees the right to not come to work for specified reasons.
An employee’s absence usually creates a staffing challenge. Seattle’s Secure Scheduling Ordinance (SSO), passed earlier this month and likely to be signed by the mayor, adds to that challenge immensely. While the ordinance applies only to large retail and franchise employers now, one need not look too deeply into the crystal ball to see that “legislative creep” may very well expand SSO’s coverage.
Through a host of procedural requirements, SSO tells employers on how they must schedule, how they must deal with the need for more or less hours than scheduled, and to whom it must offer available hours. One requirement is that an employee’s schedule must be set 14 days in advance.
Let’s take a simple example. All schedules have been set as required. One day, an employee calls out just before the start of the shift for a reason covered by the Seattle Paid Sick and Safe Time Ordinance. To meet customer demands, the employer must replace that employee’s shift.
Employers have managed this call out issue likely from the beginning of the Republic. The SSO tells employers how they will handle that issue from July 1, 2017 forward. Under the SSO, the employer
- cannot ask or require the employee who called out to find a replacement (this prohibition is in most of the PSL laws nationwide).
- cannot schedule or require to work an employee who has had less than 10 hours off since the end of the last work shift. To do so would interfere with an employee’s “right to rest.” An employer can ask that such employee work with less than ten hours between shifts. If the employee consents, the employer must pay the employee time and one-half for the number of lost rest hours (e.g., if a seven hour break, employer pays time and one-half for three hours.)
- can solicit volunteers through a group communication. If volunteers result from this group effort, the employer need not pay a scheduling penalty.
- can ask an employee to work hours which are not on his/her set schedule and, if the employee agrees to do so, pay the employee one additional hour of pay, sometimes called “predictability pay.”
There is much more to discuss about Seattle’s SSO. With only Seattle and San Francisco having these ordinances thus far, it is premature to predict development of another mega-trend. But with reports that other major cities are considering similar legislation, such a prediction may be warranted soon.