By Giselle Donado, Kevin A. Fritz, and Craig B. Simonsen

According to Democrats on the Committee on Education & the Workforce (“CE&W”), its proposed “Schedules That Work Act” (H.R. 5159) will provide relief to workers who face irregular and unpredictable schedules.

We previously blogged about President Obama’s Presidential Memorandum on Enhancing Workplace Flexibilities and Work-Life Programs. 79 Fed. Reg. 36625 (June 27, 2014). The President announced that “it is the policy of the Federal Government to promote a culture in which managers and employees understand the workplace flexibilities and work-life programs available to them and how these measures can improve agency productivity and employee engagement. The Federal Government must also identify and eliminate any arbitrary or unnecessary barriers or limitations to the use of these flexibilities and develop new strategies consistent with statute and agency mission to foster a more balanced workplace.”

Now, only a few political moments later, Congress is proposing to extend the same sorts of “flexibilities” to the private sector.  According to the CE&W bill, introduced on July 22, 2014, it would:

  • Protect employees from retaliation for requesting a more flexible, predictable, or stable schedule.
  • Create a process for employers to consider requests that are “responsive to the needs of both employees and employers.” Employees who make requests because they have caregiving duties, are dealing with a health condition, are pursuing education or training courses, or need to meet the demands of a second job “must be granted the schedule change, unless the employer has a bona fide business reason for denying it.”
  • Compensate retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours, but is sent home early.
  • Provide that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay would be required for schedules changed with less than 24 hours’ notice.
  • Provide workers an extra hour of pay if scheduled to work split shifts, or non-consecutive shifts within a single day.

Not surprisingly, the American Federation of Labor and Congress of Industrial Organizations immediately came out in support of the Schedules That Work Act, saying “scheduling problems are particularly glaring in some of the fastest-growing and lowest-paying industries in the United States, including retail, food service and janitorial work.”  In further commentary, the group noted that “if you ask a worker in the retail industry what improvements can be made to their job, the response is likely to include scheduling.”

In contrast, the U.S. Chamber of Commerce sees the proposed bill differently. Marc Freedman, Executive Director of Labor Law Policy at the Chamber, said in an email to the authors, “this bill is extraordinarily intrusive in how it would direct employers to run their operations.  It will not create new jobs, open up opportunities, nor spur economic growth. In fact one potential consequence is that employers will cut back on the number of part time and other non-full time employees they carry.”

For more information on this topic, please contact the blog authors or your Seyfarth attorney.