Oregon will likely became the first state to pass a predictable scheduling law. The bill has been sent to Governor Kate Brown, who is expected to sign it. The law would be effective July 1, 2018.
Predictable leave laws add to an employer’s challenge to deal with leave under paid sick leave laws. Let’s assume an employee gives the employer three days’ notice of the need to use a PSL day. The employer could either have another employee work the hours of the employee using PSL or, if appropriate, use a temporary employee. If the employer does neither, the co-workers of the absent employee will simply need to work faster or harder.
Under the Oregon scheduling law, if an employer requires an employee to work additional hours with less than seven days’ notice (14 days effective July 1, 2020), the employer must pay the employee one hour of compensation as a penalty, sometimes called “predictability pay.” The law purports to have an exception to address an “unexpected employee absence” but the exception seems inadequate.
The exception begins with the employer’s “voluntary standby list” (VSL), which an employer may, but need not, maintain. Employees wishing to work additional hours may sign the list. If an employer needs to fill additional hours due to an unexpected employee absence, the employee must first offer the additional hours to those on the VSL but cannot require them to work the additional hours. An employee’s signing the VSL seems to be merely an indication that if asked to work additional hours, the employee might be interested. If someone from the VSL works the additional hours, no predictability pay is due.
If the employer has exhausted the VSL list and still needs additional hours to be filled, the employer can solicit other employees to work. If an employee consents in writing to work, the employer need not pay the one hour shift schedule penalty.
However, if the employer has exhausted the VSL (or does not maintain a VSL) and no other employees have consented to work the hours of the employee on PSL, the employer can add hours to an employee’s schedule and pay the employee the additional one hour of compensation. This is a cost directly related to providing paid sick leave.
As noted above, this process applies when there is an unexpected employee absence. In my example, the employee gave three days’ notice of the need to use PSL. Is that sufficiently “unexpected” for the exception to apply?
Oregon’s predictive scheduling law applies to retail, hospitality and food services employers with at least 500 employees w orldwide, including chains and “integrated enterprises.”
Predictable scheduling laws have been enacted in Emeryville, CA; New York City; San Francisco and Seattle. Each of these has also enacted a PSL law.