EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 1
Exploring the Legal Response to
Unpredictable Scheduling Burdens
for Women in the Workplace
REPORT
OCTOBER 2021
Sophia M. Mitchell, JD
DeAnna Baumle, JD, MSW
Lindsay K. Cloud, JD
PHLR.ORG
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 2
Acknowledgements
The authors gratefully wish to acknowledge the following individuals for their substantive
contributions to this report: Stephanie Odiase, MPhil, Sapna Mehta, Katherine Gallagher
Robbins, PhD, and Anwesha Majumder, MHS, from TIME’S UP; Bethany Saxon, MS,
and Hope M. Holroyd, MA, from the Center for Public Health Law Research at Temple
University Beasley School of Law; Susan J. Lambert, PhD, from the University of Chicago;
Laura Narefsky, JD, and Julie Vogtman, JD, from the National Women’s Law Center.
And with many thanks to Rachel Deutsch, JD, formerly at the Center for Popular
Democracy, and Elaine Zundl, MA, from the Shi Project at Harvard Kennedy School, for
providing invaluable insight during the conceptualization of this report.
This report is made possible thanks to major support from the TIME’S UP Foundation
and the Time’s Up, Measure Up initiative. Time’s Up, Measure Up is generously supported by
Pivotal Ventures, an investment and incubation company created by Melinda French Gates.
Report Authors
Sophia M. Mitchell, JD
Law and Policy Analyst
Center for Public Health Law Research, Temple University Beasley School of Law
DeAnna Baumle, JD, MSW
Law and Policy Analyst
Center for Public Health Law Research, Temple University Beasley School of Law
Lindsay K. Cloud, JD
Director – Policy Surveillance Program
Center for Public Health Law Research, Temple University Beasley School of Law
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 3
Contents
EXECUTIVE SUMMARY ........................................................................................................4
INTRODUCTION ..................................................................................................................6
FEDERAL LEGAL LANDSCAPE ............................................................................................. 7
STATE AND LOCAL LEGAL LANDSCAPE ............................................................................... 8
STATE AND LOCAL ANALYSIS ........................................................................................... 12
Seattle, Washington ..................................................................................................... 13
New York City, New York ............................................................................................... 16
Chicago, Illinois ............................................................................................................ 20
Philadelphia, Pennsylvania .......................................................................................... 24
Oregon ......................................................................................................................... 27
New Hampshire ............................................................................................................ 29
Tennessee .................................................................................................................... 31
KEY FINDINGS: LEGAL ASSESSMENT ............................................................................... 32
RAPID EVIDENCE ASSESSMENT ....................................................................................... 33
KEY FINDINGS: RAPID EVIDENCE ASSESSMENT ............................................................... 35
RECOMMENDATIONS ........................................................................................................ 35
REFERENCES.................................................................................................................... 38
APPENDIX A, RESEARCH PROTOCOL ................................................................................ 43
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 4
EXECUTIVE SUMMARY
The COVID-19 pandemic has both revealed and
exacerbated gender and racial inequities in the U.S.
workforce. Women in hourly and low-paying jobs —
especially Black and Latinx women — who work in
industries with unpredictable scheduling practices have
disproportionately faced low pay, insucient benefits,
job insecurity, and discrimination in the workplace.
Unpredictable scheduling practices, which is most common
in the food service, retail, grocery, and health services
industries, subjects workers to irregular and inconsistent
work hours and provides them with little to no control
over their schedules. These practices have been shown to
cause negative health outcomes, including increased stress,
food and housing insecurity, and negative eects on mental
and emotional wellbeing. Further, the systemic issues that
have existed long before the ongoing pandemic — including
an inadequate care infrastructure and insucient legal
protections — increase the burden on women to choose
between work and family. Every day women are forced to
make the impossible decision between working to maintain
a semblance of financial security in jobs with irregular and
inconsistent shis or attending to the health and caregiving
needs of themselves and their loved ones during the
ongoing pandemic.
These burdens may vary tremendously depending upon
where a woman lives and works. This is due, in part, to the
fact that several cities and states have joined the growing
movement to address unpredictable scheduling and the
inequities it perpetuates through law and policy. These
laws and policies range in terms of worker-protectiveness
— from comprehensive, to minimal, to obstructive.
One state and six cities have enacted comprehensive
packages of legal protections, commonly called “fair
workweek laws.” Fair workweek laws specifically target
unpredictable scheduling practices. These laws include
all or several of the following legal provisions: advance
scheduling notice, good faith estimates of worker hours, a
stable schedule requirement, predictability pay, the right
to rest between shis, greater access to hours, the right to
request flexible scheduling, and anti-retaliation protections.
Generally, fair workweek laws only apply to a small subset
of hourly employees who work for large employers in
specified industries.
The majority of U.S. jurisdictions have not passed a
fair workweek law, though some have enacted narrowly
tailored protections that regulate a discrete aspect of
worker scheduling. Typically, these standalone protections
— including laws that regulate days of rest, reporting pay,
split shis, and the right to request flexible scheduling —
have been enacted at the state level and apply to most or
all workers within the jurisdiction (and therefore are not
tailored to serve certain populations or industries).
Other jurisdictions have not only failed to enact protective
provisions but have chosen to restrict localities from
passing predictable scheduling laws through state
preemption. From 2015 to 2017, at least nine states have
passed laws that prohibit local jurisdictions from passing
fair workweek laws or standalone protections that regulate
workplace scheduling (von Wilpert, 2017).
Though laws can serve as a layer of protection (or in cases
of preemption, a barrier) between employers and workers,
oentimes the extent to which these laws are helping the
population they serve to protect is unknown. In order to
develop eective interventions to address unpredictable and
unstable scheduling and its resulting harms in the United
States, systematic evaluation of current laws and processes
is necessary. However, this goal cannot be met without first
identifying relevant laws and policies and understanding
how they vary across jurisdictions. Legal epidemiology —
the scientific study and deployment of law as a factor in the
cause, distribution, and prevention of disease and injury
in a population — provides an innovative framework to
understanding the positive, negative, and incidental eects
of laws on population health (Ramanathan, 2017).
A team from the Center for Public Health Law Research
at Temple University’s Beasley School of Law drew on
the principles of legal epidemiology to conduct a pilot
assessment to capture and analyze the observable features
of laws, in a sample of jurisdictions that regulate workplace
Exploring the Legal Response to
Unpredictable Scheduling Burdens for
Women in the Workplace
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 5
scheduling. The final sample selected for analysis included
four cities and three states: Seattle, New York City, Chicago,
Philadelphia, Oregon, New Hampshire, and Tennessee.
Each jurisdiction was extensively researched to identify
relevant statutes, regulations, ordinances, and rules
related to workplace scheduling protections, which were
then analyzed and summarized in this report. The team
developed a research protocol that describes the scope of
the project, search terms, inclusion and exclusion criteria,
sampling criteria, and the quality control measures that
were implemented throughout the course of the pilot
assessment (see Appendix A).
The goal of the pilot assessment was to identify and
analyze laws that seek to address unpredictable scheduling
and its eects on women in the workplace prior to and
during the COVID-19 pandemic. In doing so, the team
conducted a rapid evidence assessment to search for
evidence assessing the direct eects of laws in the sample
jurisdictions.
Three published studies were identified — two that
focus on laws in Seattle and one on laws in Oregon.
Evidence evaluating the impact of these laws shows
promise. Specifically, laws and ordinances regulating
worker scheduling can be successful in addressing
schedule instability, worker health, and worker happiness
— including increased sleep quality and reductions in
material hardship (Harknett et al., 2021; Loustaunau et.
al, 2020; West Coast Poverty Center, 2019). However,
frontline managers’ exploitation of the broad and
numerous exceptions to fair workweek laws, combined
with a general lack of awareness or understanding of this
complex area of regulation by employers and workers, can
weaken the impact of these laws (Harknett et al., 2021;
Loustaunau et. al, 2020; West Coast Poverty Center, 2019).
Overall, this pilot assessment led to the following key
findings and recommendations for action:
• In recent years, a small number of jurisdictions have
passed comprehensive fair workweek laws. Although
these laws contain many of the same types of legal
provisions, the details, and the exceptions, vary
widely. Additionally, the applicability of these laws
is limited, with variations in the types of industries,
size of employers, and types of employees covered.
Ultimately, many hourly workers are not covered by
these fair workweek protections.
• Most jurisdictions have no laws protecting workers
from unpredictable and unstable scheduling.
• Several states have moved in the opposite direction
of passing fair workweek protections by enacting
premmptive laws that prevent localities from
passing fair workweek ordinances and standalone
protections.
• Researchers, advocates, and policymakers should
work toward improving the existing legal landscape
for workers. Specifically, we recommend continuing
federal, state, and local advocacy eorts, as well as
improving existing fair workweek laws by expanding
their applicability, eliminating excess exceptions
and loopholes, improving implementation and
enforcement eorts, and increasing public
awareness and education.
• More — and more timely — research is needed
to evaluate existing laws, particularly in light
of changes that have occurred as a result of the
ongoing COVID-19 pandemic. Robust comparative
research and evaluation is needed to determine
which provisions are most eective in improving
health outcomes for workers. Further, future
research must focus on the impact of these laws
on populations most harmed by unpredictable and
unstable scheduling. Such evaluation is vital to
ensure that legal interventions are evidence-based
and not perpetuating existing inequities.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 6
INTRODUCTION
The COVID-19 pandemic has triggered an economic
crisis and worsened gender and race disparities in
U.S. workplaces. Women in hourly and low-paying
jobs — including those working in food service, retail,
grocery, and health services industries — have been
recognized as “essential” workers but have nevertheless
disproportionately faced job losses (Gould & Kassa, 2021).
An estimated 3.4 million women lost their jobs between
February 2020 and June 2021 (Kohler, Odiase, & Forden,
2021). Black, Latinx, Asian American, and Pacific Islander
women working in low-paying hourly jobs have been
especially impacted by these losses (Gould & Kassa, 2021).
Although the economy has begun to grow and recover,
women are being le behind in that recovery (Peck, 2021;
Kohler, Odiase, & Forden, 2021).
These conditions are a product of deep-rooted systemic
inequities in U.S. workplaces. Long before the pandemic
began, women — especially Black and Latinx women—
have disproportionately faced low pay, insucient benefits,
job insecurity, and discrimination in the workplace
(Frye, 2020). Further, the United States lacks a robust
care infrastructure to serve as a safety net for working
caregivers (Palladino & Mabud, 2021). Women are more
likely than men to leave their jobs, cut their hours, or
delay returning to the workforce as a result of caregiving
needs (Mason, 2020). The pandemic has only exacerbated
unequal caregiving burdens, as women have been forced
to make the impossible choice of either staying home to
care for their loved ones or showing up to jobs with poor
working conditions — including high exposure to the virus,
inadequate protective measures, and insucient wages and
benefits (Cerullo, 2021; Boesche & Phadke, 2021).
Although the pandemic has further exposed these
disparities, employers continue to subject workers to
harmful practices that perpetuate inequity. Hourly
workers, who make up nearly 60 percent of the U.S.
workforce, have increasingly experienced lower wages,
loss of benefits, and job insecurity (Harknett & Schneider,
2020). Moreover, hourly work has experienced a
significant shi over the past several decades, moving
away from regular and stable schedules to increasingly
unpredictable and variable schedules (Henly, Lambert, &
Dresser, 2021; Harknett & Schneider, 2020). Two-thirds of
hourly workers report getting less than two weeks’ notice
of their schedules, and half of those workers get less than
one week’s notice (Schneider & Harknett, 2019). Those
most impacted by unpredictable scheduling practices
are Black and Latinx women, low-income workers, and
workers in the service industry — particularly workers
in retail, hospitality, and food service (Boesch & Phadke,
2021; Golden, 2015; National Women’s Law Center, 2019b;
Schneider & Harknett, 2019).
Unpredictable scheduling practices provide workers with
little to no control over their work schedule and resulting
wages. These practices include erratic schedules, little to
no advance notice of scheduled shis, and on-call shis
(which require workers to be available to work without
knowing whether they will actually be required to work
during that time). Workers with unpredictable schedules
experience greater work-family conflicts, greater work
stress, variable earnings, and childcare diculties (Golden,
2015). They are significantly more likely to experience
material hardship, including hunger and housing insecurity
(Schneider & Harknett, 2019, pp. 4–6). Unpredictable
scheduling also has measurable negative eects on
parents’ and children’s mental and emotional wellbeing,
contributing to the intergenerational transmission of
inequity (Schneider & Harknett, 2019). Despite these
findings, workplaces are more likely to blame low-income
and Black workers for struggling to maintain work-life
balance and find childcare (Dodson, 2013; Williams et al.,
2013), rather than recognize how their own scheduling
practices contribute to those struggles.
There has been a growing movement in recent years to
address unpredictable scheduling and the inequities it
perpetuates through both private and public policy. In
2015 and 2016, the Gap and other retail stores participated
in a randomized controlled study of the eects of stable
scheduling in the retail industry (Williams et al., 2018).
Stores that participated in the study implemented various
policies aimed at stabilizing worker schedules, including
providing advance schedule notice, stabilizing shi
structures, and guaranteeing a minimum number of hours
to workers (Williams et al., 2018). The study found that
Unpredictable scheduling practices provide workers with
little to no control over their work schedule and resulting
wages. Common unpredictable scheduling practices
include:
• Erratic and inconsistent scheduling
• Little to no advance notice of scheduling shifts
• On-call shifts
These practices have been shown to materially harm
workers and their families, by increasing stress,
contributing to food and housing insecurity, and
negatively affecting mental and emotional health.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 7
such policies not only benefitted workers by increasing
schedule predictability and stability, but also benefitted
employers by sharply increasing sales and productivity
(Williams et al., 2018). Aer the pretest phase of the study,
the Gap chose to implement advance notice policies and
eliminated on-call scheduling (Williams et al., 2018). A
few other corporations have implemented similar internal
advance notice policies (e.g., CVS) or right to rest policies
(e.g., Honda) (Enemark, 2021). However, despite growing
evidence showing that these scheduling policies and
practices improve both worker health and the bottom line
(Kesavan et al., in press), most private companies have
failed to voluntarily implement such practices on a wide
scale.
Due to stagnation in the uptake of these policies by the
private sector, advocates have turned to lawmakers to
address the problem of precarious schedules. At the federal
level, two bills that regulate employer scheduling have been
recently introduced in Congress but have yet to pass: the
Schedules That Work Act and the Part-Time Worker Bill of
Rights Act. In the absence of federal protections, a number
of state and local governments have enacted laws that aim
to improve schedule predictability and stability (National
Women’s Law Center, 2019a). One state (Oregon) and six
cities (Chicago, IL; Emeryville, CA; New York City, NY;
Philadelphia, PA; San Francisco, CA; and Seattle, WA) have
enacted comprehensive fair workweek laws, which require
employers to provide advance scheduling notice and
provide other scheduling protections to workers. However,
as state and local laws gain momentum, private companies
and lobbying groups have fought against their enactment,
filing unsuccessful lawsuits challenging their validity and
advocating for preemptive laws that prohibit localities from
enacting predictable scheduling regulations (Lyden, 2020,
pp. 121–22; New York City Hall, 2020; von Wilpert, 2017).
Early studies evaluating the impact of these laws have
shown that laws and ordinances regulating worker
scheduling can be successful in addressing schedule
instability, worker health, and worker happiness —
including increased sleep quality and reductions in
material hardship (Harknett et al., 2021; Loustaunau et.al,
2020; West Coast Poverty Center, 2019). No published
studies analyze variances in these laws across jurisdictions.
Comparative research could better assess which features
of these laws are most successful in improving conditions
for workers, particularly Black and Latinx women. Further,
because some aspects of predictable scheduling laws
were delayed or suspended as a result of the COVID-19
pandemic, research is needed to evaluate the eects of
these laws before, during, and aer the pandemic. Now
more than ever, law must be investigated as a primary
intervention in health outcomes research.
This report describes a pilot assessment that focuses
on laws that seek to address unpredictable scheduling
practices and their impacts on women in the workplace
prior to and during the COVID-19 pandemic. It provides
an overview of the federal legal landscape and examines
state laws and local ordinances regulating predictable
scheduling. Seven jurisdictions — four cities (Seattle, New
York City, Chicago, and Philadelphia) and three states
(Oregon, New Hampshire, and Tennessee) — were sampled
to identify key features of these laws across jurisdictions
and historical trends over time. Appendix A to this report
provides detailed information about the research methods
used in this pilot assessment, including the selection of
sample jurisdictions. In addition to the legal assessment,
the authors include a short discussion of existing empirical
evidence that evaluates the direct eects of fair workweek
laws in two of the sample jurisdictions. The report concludes
with key findings from the legal assessment, policy
recommendations for advocates and policymakers, and a
call for more robust and comparative research evaluating
the eects of laws regulating workplace scheduling in the
United States.
FEDERAL LEGAL LANDSCAPE
The Fair Labor Standards Act (FLSA) provides wage and
hour protections to workers in the United States (Boushey
& Ansel, 2016, p. 15). The federal FSLA was enacted in
1938 and covers workplace issues including minimum
wage, 40-hour workweeks and overtime pay, and child
labor protections; however, the FLSA does not directly
address predictable scheduling (Boushey & Ansel, 2016, p.
15). In recent years, members of Congress have introduced
two bills that seek to improve worker scheduling at the
federal level, but those bills have failed to pass.
In 2015, Senator Elizabeth Warren and Representative
Rosa DeLauro introduced the Schedules That Work Act,
a bill that directly addresses unpredictable scheduling
(Boushey & Ansel, 2016, p.18). The bill was later
reintroduced in 2017 and 2019 but has never come up
for a vote (Lepore, 2021). The bills explicitly recognize
the disproportionate impact that unpredictable scheduling
has on women working low-wage jobs, and in response
seeks to address the problem on a wide scale (Schedules
That Work Act, 2019). Some protections would apply
to nearly all workers in the United States (i.e., both full-
and part-time, as well as hourly and salaried workers),
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 8
while others are limited to non-exempt workers
1
in the
retail, food service, cleaning, hospitality, and warehouse
industries. More specifically, several key provisions attempt
to curtail irregular schedules and their resulting negative
eects by requiring employers to provide advance notice
of scheduling to employees — both an estimated schedule
at the time of hire and the employee’s actual schedule
two weeks in advance. The bill also requires employers to
provide additional pay (“predictability pay”) to employees
for schedule changes that occur with less than two weeks
of advance notice. Further, employees would be granted the
right to request flexible scheduling without repercussions,
the right to reject shis scheduled in close succession
(“clopening shis”), and the right to additional pay when
working such shis.
In 2020, Senator Elizabeth Warren, Representative Jan
Schakowsky, and several others in Congress introduced the
Part-Time Workers Bill of Rights Act, to specifically address
workplace issues plaguing part-time workers (Maye,
2021, p. 3; Insider NJ, 2020). Among other things, the bill
requires employers to provide newly available or existing
hours and shis to qualified employees before hiring new
workers to fill those shis (Part-Time Worker Bill of Rights
Act of 2020). Like the Schedules That Work Act, the Part-
Time Workers Bill of Rights Act has not come to a vote.
1 Non-exempt employees are entitled to certain protections under FLSA, which sets minimum wage and overtime pay requirements. Non-exempt
workers are typically (but not exclusively) hourly employees paid at a set hourly rate.
As of August 2021, the federal government has failed
to enact any legal protections that address common
unpredictable scheduling practices by employers across
the United States.
STATE AND LOCAL LEGAL LANDSCAPE
In absence of federal law, some state and local governments
have worked to fill legislative gaps in workplace safeguards,
resulting in a patchwork of protections for workers across
the country. Although some of these state and local laws
have existed for decades, most were recently passed in
response to growing public awareness and advocacy around
unpredictable scheduling practices.
Today, there are several types of laws and legal provisions
regulating workplace scheduling practices and related
issues that range in terms of protectiveness — from
comprehensive, to minimal, to obstructive. Some
jurisdictions have enacted comprehensive packages of
legal protections, most oen called “fair workweek laws,”
that specifically target unpredictable scheduling practices
and regulate several aspects of worker scheduling. Fair
workweek laws can include all, or a combination of the
following legal provisions: advance scheduling notice,
a stable schedule requirement, good faith estimates,
predictability pay, the right to rest between shis, greater
access to hours, the right to request flexible scheduling,
and anti-retaliation provisions (see Figure 1). Although
fair workweek laws provide the most comprehensive
set of protections to workers, they usually have limited
applicability, applying only to certain workers within
specified industries (most commonly, workers in the food
service and retail industries). Importantly, this limited
applicability means these laws generally exclude small
businesses and only apply to employers with a large
workforce.
The majority of U.S. jurisdictions have yet to enact a
comprehensive fair workweek law, though some have
enacted narrowly tailored protections that regulate a
discrete aspect of worker scheduling. Typically, these
standalone protections have been enacted at the state level
and apply to most or all workers within the jurisdiction
(and therefore are not tailored to serve certain populations
or industries). Common standalone provisions include: day
of rest laws, reporting pay laws, split shi laws, and right
to request flexible scheduling laws.
FAIR WORKWEEK LAWS
Fair workweek laws are comprehensive packages of
legal protections that specifically target unpredictable
scheduling practices. They include multiple provisions
that regulate workplace scheduling, including advance
scheduling notice, predictability pay, and the right to rest
between shifts, among others.
STANDALONE LAWS
Standalone laws are legal protections that regulate
discrete aspects of workplace scheduling. These
laws are not passed as part of a comprehensive legal
package or act and typically regulate issues related to,
but not specifically targeting, unpredictable scheduling
practices. Examples include day of rest laws and
reporting pay laws.
PREDICTABLE SCHEDULING PREEMPTION LAWS
Predictable scheduling preemption laws are restrictive
laws passed at the state level that prohibit local
jurisdictions from passing fair workweek laws or
standalone protections regulating workplace scheduling.
FAIR WORKWEEK LAWS
DISPROPORTIONATE IMPACT OF UNPREDICTABLE SCHEDULING DURING COVID-19 • 9
ADVANCE
SCHEDULING
NOTICE
Requires employers
to provide employees
with notice by
releasing written
schedules a minimum
number of days
before the first day of
scheduled work.
GOOD FAITH
ESTIMATES
Requires employers to
provide an estimate of
the hours an employee
can expect to work
from week to week,
as well as whether
the employee will be
expected to work on-
call shifts.
STABLE
SCHEDULE
REQUIREMENT
Requires employers
to provide employees
with a stable schedule,
consisting of a regular,
recurring set of shifts
the employee will
work each week.
Requires employers
to compensate
employees for any
employer-initiated
changes made to the
schedule after the
advance notice period.
PREDICTABILITY
PAY
RIGHT TO REST
BETWEEN
SHIFTS
Requires an employer
to gain the employee’s
consent before
scheduling that
employee to work
two shifts in close
succession (e.g., a
closing shift and an
opening shift the next
morning less than
eight hours apart).
GREATER
ACCESS TO
HOURS
Requires employers to
offer open work shifts
to existing employees
before making new
hires to fill those
shifts.
RIGHT TO
REQUEST
FLEXIBLE
SCHEDULING
Protects employees
from retaliation
when they request
flexible schedules or
schedule changes,
and sometimes
specifies that
workers may request
flexible schedules
due to caregiving
responsibilities.
ANTI-
RETALIATION
Prohibits employers
from retaliating
against employees
who excercise any of
the rights guaranteed
under a fair workweek
law.
Figure 1. Legal provisions commonly contained in fair workweek laws
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 10
At the other end of the continuum, some jurisdictions have
not only failed to enact workplace scheduling laws but have
chosen to restrict localities from passing such protections
through preemption. Preemption is a legal doctrine that
allows a higher level of government to limit, or prevent, the
regulatory authority of a lower level of government. As the
movement for fair workweek laws has grown, several states
have enacted these harmful laws in response to mounting
business pressure.
Defining the State and Local Legal Provisions
Fair Workweek Laws
Beginning in 2014, a small number of jurisdictions started
to pass comprehensive fair workweek laws. San Francisco,
CA, was the first jurisdiction to pass the law in 2014,
which became eective in 2015 (eective dates indicate
when the law takes eect and becomes enforceable).
Oregon is the first and only state to enact a statewide fair
workweek law. These laws have gained more momentum
at the local level and have been passed in a total of six
cities: Chicago, IL; Emeryville, CA; New York City, NY;
Philadelphia, PA; San Francisco, CA; and Seattle, WA.
2
As
of August 2021, seven U.S. jurisdictions have enacted a fair
workweek law (see Figure 2).
Fair workweek laws specifically target unpredictable
scheduling and contain several, or all, of the following legal
provisions:
Advance Scheduling Notice. These provisions require
employers to provide workers with notice by releasing
written schedules a minimum number of days before
2 Some researchers define fair workweek laws more broadly to include standalone protections, such as standalone access-to-hours laws. For the
purposes of this report, we define fair workweek laws as laws that specifically target unpredictable scheduling practices and regulate several aspects of
worker scheduling through a comprehensive package of protections that may include: advance scheduling notice, good faith estimates, stable schedule
requirements, predictability pay, the right to rest between shis, greater access to hours, the right to request flexible scheduling, and anti-retaliation
provisions (see Figure 1).
the first day of scheduled work. Typically, the amount
of required notice ranges from 10 to 14 days. Some
jurisdictions have staggered the implementation of
the amount of notice required, so that the amount of
required notice starts at a lower number but jumps to
a higher number aer the law has been in eect for a
couple years.
Good Faith Estimates. These provisions require
employers to provide a “good faith” estimate of the
hours an employee can expect to work from week
to week, as well as whether the employee will be
expected to work on-call shis. This estimate is
typically required to be provided to new employees
at the commencement of their employment and, for
current employees, some jurisdictions also require an
annual good faith estimate to be provided as well.
Stable Schedule Requirement. These provisions go
beyond good faith estimate provisions and require
employers to provide employees with a stable
schedule, consisting of a regular, recurring set of
shis the employee will work each week.
Predictability Pay. These provisions require
employers to compensate employees for any employer-
initiated changes made to the schedule aer the
advance notice period. The amount of pay required
varies across jurisdictions. Oen, the amount
will depend on the type of change and how soon
before the scheduled shi the change occurred.
Some jurisdictions have delayed, or suspended,
predictability pay provisions as a result of the
COVID-19 pandemic.
Figure 2. Seven jurisdictions have passed fair workweek laws. Jurisdictions are listed by the year the law took effect.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 11
Right to Rest Between Shifts. These provisions —
also known as “clopening” protections — require
an employer to gain the employee’s consent before
scheduling that employee to work two shis in close
succession (e.g., a closing shi and an opening shi
the next morning less than eight hours apart). In
some jurisdictions, if an employee consents to work
such shis, employers are required to provide the
employee with higher pay.
Greater Access to Hours. These provisions require
employers to oer open work shis to existing
employees before hiring new employees to fill those
shis. These protections aim to address the fact that
many workers, especially part-time and low-wage
workers, are underemployed and want more hours
than they are currently oered. In addition to the
jurisdictions that have included these protections in
their fair workweek laws, two cities (SeaTac, WA, and
San Jose, CA) have passed a standalone greater access
to hours law.
Right to Request Flexible Scheduling. These
provisions protect employees from retaliation when
they request flexible schedules and sometimes specify
that workers may request flexible schedules due to
caregiving responsibilities. Although employers are
prohibited from retaliating against workers, they
typically do not require employers to accommodate
such requests. In addition to the jurisdictions
that have included these protections in their
comprehensive fair workweek laws, two states (New
Hampshire and Vermont) have passed a standalone
right-to-request law.
Anti-Retaliation. These provisions prohibit employers
from retaliating against workers who exercise any of
the rights guaranteed under a fair workweek law.
Some jurisdictions have also passed standalone laws that
regulate discrete aspects of worker scheduling. These laws
include:
Day of Rest Laws. Day of rest laws, which require
employers to provide one day of rest in a work week,
have existed in various forms for centuries. These
laws derive from religious colonial laws requiring
observation of the Sabbath, but they have evolved
into secular laws seeking to protect laborers from
3 The laws in MD, ND, and TX apply only to retail workers (Md. Code, Labor and Employment, § 3-704; N.D. Cent. Code § 34-06-05.1; Tex. Labor
Code § 52.001). PA’s law applies only to movie theater workers (43 PA. Cons. Stat. § 481). Domestic worker bill of rights laws—which sometimes
require a day of rest—were scoped out of this research.
4 Non-exempt employees are entitled to certain protections under FLSA, which sets minimum wage and overtime pay requirements. Non-exempt
workers are typically (but not exclusively) hourly employees paid at a set hourly rate.
overwork (McGowan v. Maryland, 366 U.S. 420,
430–35 (1961)). Modern day of rest laws typically
apply to most or all workers in a jurisdiction but
sometimes have several exceptions and carve-outs,
resulting in less protection for workers who may
be most vulnerable to unpredictable scheduling.
However, a few states’ laws target workers in certain
industries. Some day of rest laws require the day of
rest to be a scheduled, designated day, while others
simply prohibit employers from requiring work seven
consecutive days in a row (meaning that a worker’s
rest day may vary week to week). The following states
have a day of rest law currently in eect: CA, CT, IL,
KY, MA, MD, ND, NH, NY, PA, TX, and WI.
3
Reporting Pay Laws. Reporting pay laws require
employers to pay employees for showing up to a
shi, even if that employee is sent home without
working. These laws may help curb employers from
heavily relying on on-call and just-in-time scheduling
practices (National Women’s Law Center, 2015).
Some of these laws were implemented as early as the
1960s. Most reporting pay laws apply generally to all
non-exempt employees,
4
although some states limit
these laws to workers in certain industries. Reporting
pay laws are currently in eect in the following
jurisdictions: CA, CT, DC, MA, NH, NJ, NY, and RI.
Split Shift Laws. Split shi laws require employers to
provide additional pay to workers who are required
to work “split shis” — shis that include a gap of
unpaid time on the same day (e.g., a shi requiring
work from 11 a.m.–2 p.m. and 4 p.m.–7 p.m.). These
laws typically apply to all non-exempt employees, but
sometimes include several exceptions and carve-outs.
Split shi laws are currently in eect in the following
jurisdictions: CA, DC, and NY.
At the other end of the continuum, several states have used
preemption to restrict local jurisdictions from enacting
fair workweek and other standalone protections regulating
workplace scheduling.
Predictable Scheduling Preemption. As the
movement for fair workweek laws has gained
momentum, several states have responded by passing
laws that strip local governments of the power to
regulate workplace scheduling via state preemptory
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 12
power (von Wilpert, 2017). These laws are part of
a larger movement by states to preempt localities
from enacting workplace regulations and progressive
policies more generally (Blair et al., 2020; see also
Haddow, 2021; Lankachandra, 2020). Historically,
state preemption is rooted in racism and can be
traced to eorts by Southern states to limit the
rights of Black people in the wake of Reconstruction
(Blair et al., 2020). Today, state laws that preempt
local authority and autonomy are oen passed by
disproportionately white legislatures and restrict the
political power of Black and Latinx people, women,
and low-income workers (Blair et al., 2020; see also
Haddow, 2021). From 2015 to 2017, at least nine
states passed laws preempting local governments
from passing predictable scheduling laws: AL, AR,
GA, IA, IN, KS, MI, OH, and TN (von Wilpert, 2017).
Some of these provisions explicitly target predictable
scheduling laws, while others preempt local
workplace protections and regulations more generally.
STATE AND LOCAL ANALYSIS
Though laws can serve as a layer of protection between
employers and workers, oentimes the extent to which
these laws are helping the population they serve to protect
is unknown. Legal epidemiology — the scientific study and
deployment of law as a factor in the cause, distribution,
and prevention of disease and injury in a population
— provides an innovative framework to understanding
the positive, negative, and incidental eects of laws on
population health (Ramanathan, 2017). In conducting
this pilot assessment, a team of three researchers drew on
principles of legal epidemiology to capture and analyze the
observable features of state statutes and regulations, and
local ordinances, in a sample of jurisdictions that regulate
workplace scheduling.
Specifically, the team conducted background research
using legal databases (e.g., Westlaw) and secondary
sources to write background memoranda. Aer reviewing
and discussing the memoranda, the team consulted with
subject matter experts to further conceptualize the scope
of this project by identifying the sample jurisdictions and
developing a list of legal variables for inclusion. The sample
of states and localities were chosen based on several
factors, including the breadth of relevant law within that
jurisdiction, the demographic and political makeup of the
jurisdiction, and whether there were empirical evaluations
of the jurisdiction’s laws. The final sample selected for
analysis included four cities and three states: Seattle, New
York City, Chicago, Philadelphia, Oregon, New Hampshire,
and Tennessee (see Table 1).
Jurisdiction has
this provision
Jurisdiction does not
have this provision
*New York City formerly had a good faith estimate provision, but
amended its fair workweek ordinance to replace that provision with a
stable schedule requirement, effective July 2021.
TABLE 1: LEGAL ASSESSMENT RESULTS FOR SAMPLE JURISDICTIONS, AS OF AUGUST 1, 2021
LEGAL PROVISIONS Seattle
New York
City
Chicago Philadelphia Oregon
New
Hampshire
Tennessee
Advance scheduling notice
Good faith estimates
*
Stable schedule requirement
Predictability pay
Right to rest between shifts
Greater access to hours
Right to request flexible scheduling
Anti-retaliation
Day of rest
Reporting pay
Split shift
Predictable scheduling preemption
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 13
The seven jurisdictions were split between two researchers
to conduct extensive, independent research to identify all
relevant statutes, regulations, ordinances, and rules within
the project’s scope. The team used keyword searches to
identify, capture, and analyze relevant law in each of the
sample jurisdictions. Aer the initial jurisdictional-specific
research was conducted, the researchers flagged several
legal provisions and legal variables across the sample
jurisdictions for redundant research to ensure accuracy.
Original and redundant research was supplemented by
reviewing secondary sources and consultation with subject
matter experts. The final jurisdictional analysis of relevant
state and local law is described in detail jurisdiction
by jurisdiction, beginning with Seattle, Washington.
Throughout the course of the pilot assessment, the team
developed a research protocol (see Appendix A) to ensure
transparency and replicability. The research protocol
describes the scope of the project, search terms, inclusion
and exclusion criteria, sampling criteria, and quality
control measures that were implemented throughout the
project.
TABLE 2: INDUSTRIES COVERED AND SIZE OF EMPLOYERS
JURISDICTION INDUSTRIES COVERED EMPLOYERS COVERED
Seattle Retail 500+ employees worldwide
Food service
New York City Retail 20+ employees
Fast food 30+ restaurants nationally
Chicago Retail 100+ employees worldwide (250+ employees worldwide if
nonprofit) AND 50+ employees must be covered employees
Restaurants
Hotels
Building services
Healthcare
Manufacturing
Warehouse services
Philadelphia Retail 250+ employees worldwide AND 30+ locations worldwide
Food service
Hospitality
Oregon Retail 500+ employees worldwide
Food service
Hospitality
Seattle, Washington
Background
In 2016, Seattle passed one of the first comprehensive fair
workweek laws, the Secure Scheduling Ordinance, which
went into eect on July 1, 2017 (Fair Workweek Initiative,
n.d.; Harknett et al., 2021, p. 5). Seattle’s ordinance
contains several hallmark provisions, including advance
scheduling notice, good faith estimates, predictability pay,
access to hours, the right to rest between shis, the right to
request flexible scheduling, and anti-retaliation protections.
Seattle’s ordinance is limited to certain employees in the
retail and food service industries.
Seattle has not released ocial data about the number of
workers covered by the ordinance, though recent census
data show that approximately 60,191 people in Seattle
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 14
over the age of 16 work in covered industries.
5
However,
the actual number of workers covered by the ordinance is
likely significantly lower because it only applies to workers
who are employed by large businesses.
Although Seattle workers are protected by the city’s fair
workweek law, Washington State has not enacted a fair
workweek law nor any standalone protections.
Legal Analysis
Fair Workweek Law
Seattle’s ordinance only applies to retail establishments
and food service establishments that employ 500
employees worldwide (Seattle Mun. Code §14.22.020(A)).
6
Additionally, to be covered by the ordinance, employees
must work at a fixed point of sale location of a covered
employer, and work in a physical location in Seattle at least
50 percent of the time (Seattle Mun. Code § 14.22.015).
Individual employees cannot waive any of the protections
in the ordinance (Seattle Mun. Code § 14.22.145(B).
However, provisions of the ordinance can be waived in a
collective bargaining agreement, so long as the waiver is
clear and unambiguous, and the bargaining agreement
contains “an alternative structure for secure scheduling
that meets the public policy goals of” the ordinance (Seattle
Mun. Code § 14.22.145(A)).
The Seattle Oce of Labor Standards has the power
to enforce the ordinance, including by investigating
complaints and promulgating rules and guidelines for
implementation and enforcement of the ordinance
5 Data is derived from the 2019 ACS 1-year estimated detailed table showing the number of people aged 16 and up employed in the following
occupations: food preparation and service, and sales (including retail). Demographic data showing the breakdown of race in those occupations in Seattle
is not available.
6 Additionally, full service restaurants (a subset of food service establishments) must have 40 or more full service restaurant locations worldwide to
be subject to the ordinance (Seattle Mun. Code §14.22.020(A)(2)).
7 For new hires and employees returning from a leave of absence, the employer need only provide a written work schedule that runs through the last
date of the currently posted schedule (and thereaer must provide 14 days’ notice) (Seattle Mun. Code § 14.22.040(B)).
8 Seattle regulations explain that “timely notice” must “reflect[] the employer’s good faith eort to contact the employee promptly and without undue
delay aer learning of the need for changing the employee’s work schedule[,]” but does not otherwise provide guidance on what makes notice timely.
(Seattle Mun. Code §§14.22.075, 14.22.085, 14.22.090).
If the oce finds that a violation has occurred, the
employee may be entitled to compensation, liquidated
damages, civil penalties, and attorney fees (Seattle Mun.
Code §14.22.095(A), (H)). Additionally, employers
may be subject to fines ranging from $500 to $20,000
per violation (Seattle Mun. Code §14.22.095(B)–(G)).
Further, an employee may bring a civil cause of action
in a court of competent jurisdiction for violations of the
ordinance and may be awarded legal or equitable relief,
damages, and attorney fees and costs (Seattle Mun. Code
§14.22.125(A)).
Advance Scheduling Notice. Employers must provide
employees with 14 days’ notice of their schedule
(Seattle Mun. Code § 14.22.040(A)).
7
The schedule
must be in writing, be posted in a conspicuous and
accessible location, and must be in English and the
primary languages of the employees (Seattle Mun.
Code § 14.22.040(A), (D)).
Good Faith Estimates. At an employee’s time of hire,
an employer must provide a good faith estimate of
the employee’s schedule, which must include the
median number of hours the employee is expected
to work per week and whether the employee can
expect to work on-call shis (Seattle Mun. Code §
14.22.025(A)). Although an employer is not bound
by the good faith estimate, they must initiate “an
interactive process with the employee” if there is a
significant change from the estimate (Seattle Mun.
Code § 14.22.025(A)(2)). Additionally, employers
must revise the good faith estimate once every
year for existing employees (Seattle Mun. Code §
14.22.025(A)(1)).
Predictability Pay. If an employer wants to change the
schedule within the above-described 14-day notice
period, they must provide the employee with “timely
notice” either in-person, by telephone, or in another
electronic format (Seattle Mun. Code § 14.22.045(A)
(1)).
8
Employees have the right to decline any such
changes (Seattle Mun. Code §14.22.045(A)(2)).
SEATTLE’S FAIR WORKWEEK LAW APPLIES
TO EMPLOYEES WHO WORK:
• In retail or food service establishments;
• At a physical location in Seattle at least 50% of the
time; and
• For employers with 500+ employees worldwide.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 15
Employees are also entitled to additional pay
(“premium pay”) if their employer changes their
schedule during the notice period. Specifically, if
the employer changes the schedule by either adding
hours of work or changing the time of a shi (with
no change to the number of hours), the employee
is entitled to one hour of pay in addition to the
wages earned during the shi (Seattle Mun. Code
§14.22.050(A)(1)). If the change in schedule results
in a loss of hours (for instance, by shrinking a shi,
canceling a shi, or canceling an on-call shi), the
employee is entitled to one-half the rate of pay for the
scheduled hours the employee does not work (Seattle
Mun. Code §14.22.050(A)(2)).
However, employees are not entitled to the above-
described predictability pay in several circumstances
(Seattle Mun. Code §14.22.050(B)). Employees
who voluntarily switch shis among themselves,
voluntarily request changes to their own schedule
within the notice period, or voluntarily agree to
work additional hours during a shi in response to
unanticipated customer needs, are not entitled to
9 If an employee wants to change their schedule within the 14-day notice period, they must follow certain procedures; however, an employer cannot
require an employee to find a replacement worker if the change is due to an emergency, major life event, or reasons covered by other federal, state, or
local laws (such as paid sick leave) (Seattle Mun. Code § 14.22.045(B)).
predictability pay (Seattle Mun. Code §14.22.050(B)
(1), (3), (5)).
9
Additionally, in certain circumstances,
employees who volunteer to work in response to a
mass communication about the availability of open
hours are not entitled to predictability pay (Seattle
Mun. Code §14.22.050(B)(2); Seattle Oce of Labor
Standards, Rule 120-260). Nor are employees entitled
to predictability pay if they accept additional hours
pursuant to the ordinance’s access-to-hours provision
(Seattle Mun. Code § 14.22.050(B)(4)). Further,
employees are not entitled to predictability pay for
schedule changes resulting from disciplinary action,
threats to employees or property, failure of public
utilities, or natural disasters (Seattle Mun. Code
§14.22.050(B)(6)-(9)).
As to the COVID-19 pandemic, the Oce of Labor
Standards has clarified that employers “do not need
to provide premium pay for schedule changes if
business operations cannot begin or continue due to
recommendation of a public ocial, including public
health ocials” (Seattle Oce of Labor Standards,
n.d.). For instance, a restaurant may be exempt from
TABLE 3: LEGAL ASSESSMENT RESULTS FOR SEATTLE, AS OF AUGUST 1, 2021
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice YES 14 days’ notice
Good faith estimates YES At time of hire
Stable schedule requirement NO .
Predictability pay YES Addition of hours or change in time shift: 1 hour of
additional pay
Reduction or cancellation of hours: 50% of pay of the
cancelled hours
Right to rest between shifts YES 10 hours
Greater access to hours YES Must be offered to current employees
Right to request flexible
scheduling
YES Employer must grant requests due to “major life events”
Anti-retaliation YES .
Day of rest NO .
Reporting pay NO .
Split shift laws NO .
Predictable scheduling
preemption
NO .
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 16
providing premium pay where it must switch to only
providing delivery and takeout services in response to
a public ocial’s order, resulting in schedule changes
less than 14 days in advance (Seattle Oce of Labor
Standards, 2021). Additionally, an employer may be
exempt from providing premium pay if they learn
that an employee has tested positive for COVID-19
and as a result, closes early and sends all employees
home (Seattle Oce of Labor Standards, 2021).
Right to Rest Between Shifts. Employers cannot
schedule a shi or require an employee to work
less than 10 hours aer the end of the employee’s
prior shi without the employee’s consent (Seattle
Mun. Code §14.22.035(A)). If an employee agrees
to work such a shi, they are entitled to 1.5 times
their scheduled rate of pay for the hours worked
that are less than 10 hours apart (Seattle Mun.
Code §14.22.035(B)). However, this additional pay
does not apply to split shis (Seattle Mun. Code
§14.22.035(C)).
10
Greater Access to Hours. Prior to hiring new
employees or using a temporary stang agency,
employers must make any open hours and shis
available to current employees (Seattle Mun. Code
§14.22.055(A)). The employer must post detailed,
written notice of available hours in a conspicuous
and accessible location and must follow specified
procedures in oering and scheduling those hours
(Seattle Mun. Code §14.22.055(B)–(D)).
Right to Request Flexible Scheduling. Employees have
a right to request certain scheduling accommodations;
specifically, they are entitled to request not to be
scheduled during certain times or at certain locations,
to identify preferred hours of work, and to identify any
changes in their work availability (Seattle Mun. Code
§14.22.030(A)). If the request is not due to a major
life event, the employer must engage in an interactive
process with the employee but may grant or deny the
request for any reason that is not unlawful (Seattle
Mun. Code §14.22.030(B)(1)). If the request is due
to a major life event, and the employee provides any
requested verifying information about the event, the
employer must grant the request unless the employer
has a bona fide reason to deny the request and must
provide a written response detailing the reason for the
denial (Seattle Mun. Code §14.22.030(B)(2)).
10 Seattle defines a split shi as a shi with hours that “are not consecutive and are interrupted by one or more employer-required, unpaid, non-
working periods that are between one to four hours and that are not bona fide rest or meal periods” (Seattle Oce of Labor Standards, Rule 120-
200(2)).
Anti-Retaliation. Employers are prohibited from
retaliating against employees who exercise their
rights pursuant to the ordinance (Seattle Mun. Code
§14.22.070). There is a rebuttable presumption of
retaliation if an employer takes an adverse action
against an employee within 90 days of that employee’s
exercising of their rights (Seattle Mun. Code
§14.22.070(D)).
New York City, New York
Background
In May 2017, New York City passed a fair workweek
law to provide employees in the fast food and retail
industries with more consistent work schedules, which
became eective on November 26, 2017. In July 2018,
the ordinance was amended to add a provision to
provide employees with the right to request schedule
accommodations to attend to personal events, such as
caregiving responsibilities. In January 2021, the New York
City Council again amended the law in direct response
to the COVID-19 pandemic (Klein & Pappas, 2021).
The amendment, which went into eect in July 2021,
requires fast food employers to provide every employee
with a regular schedule of recurring shis, prevents fast
food employers from firing an employee or reducing an
employee’s hours by more than 15 percent without just
cause, and requires that former employees that were
discharged for economic purposes be rehired if additional
hours are available.
New York City’s law contains several key predictable
scheduling protections for workers: advance scheduling
notice, a stable schedule requirement, predictability pay,
the right to rest, greater access to hours, the right to
request flexible scheduling, and anti-retaliation provisions.
Notably, New York City is the only jurisdiction to have
implemented a stable schedule requirement. Unlike most
other localities with a fair workweek law that applies to
multiple industries, New York City’s law has dierent
requirements for fast food workers versus retail workers,
and most of its protections apply only to fast food workers.
However, its right-to-request provision is not limited to
certain industries, but instead applies to most employees
throughout the city.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 17
An estimated 4 million people are covered by the New
York City’s right-to-request provision — which applies to
most employees in the city.
11
Most of the other predictable
scheduling protections only apply to certain fast food
workers in the city and recent data estimate that there are
approximately 67,000 fast food workers in the city,
88 percent of whom are workers of color.
12
In addition to the city’s fair workweek law, workers in
New York City are protected by statewide standalone
protections, including a day of rest law, a reporting pay
law, and a split shi law.
Legal Analysis
Fair Workweek Law
New York City’s ordinance applies primarily to workers
in fast food establishments and retail establishments
(N.Y.C., N.Y., Admin. Code § 20-1201). To be subject to
the requirements, the fast food establishment must serve
food and drink, be part of a chain, and have 30 or more
restaurants nationally (N.Y.C., N.Y., Admin. Code § 20-
1201). For retail establishments to be covered, they must
have 20 or more employees, and be primarily engaged in
the sale of consumer goods at one or more stores within
New York City (N.Y.C., N.Y., Admin. Code § 20-1201).
11 Data is derived from the 2019 ACS 1-year estimated detailed table showing the civilian employed population over the age of 16.
12 Data is based on analysis conducted by the Center for Popular Democracy (Center for Popular Democracy, 2019). The analysis does not define
“people of color,” nor does it disaggregate the data by gender.
The New York City Commissioner of Consumer and Worker
Protection has the power to enforce the ordinance, as well
as the power conduct outreach, education, and create an
annual report documenting the administrative and civil
actions taken by covered New York City employees (N.Y.C.,
N.Y., Admin. Code § 20-1207; N.Y.C., N.Y., Admin. Code §
20-1202; N.Y.C., N.Y., Admin. Code § 20-1203). Employers
who violate any provision of the ordinance are subject
to pay damages, from $200 for violating advance notice
requirement to $2,500 for retaliation that results in an
employee’s dismissal (N.Y.C., N.Y., Admin. Code § 20-
1208). Additionally, employers who violate the ordinance
are subject to a fine payable to the city: $500 for the first
violation, $750 for the second violation within two years
of the previous violation, and $1,000 for each subsequent
violation (N.Y.C., N.Y., Admin. Code § 20-1209).
Further, employees may bring a civil cause of action for
violations of the ordinance in any court of competent
jurisdiction (N.Y.C., N.Y., Admin. Code § 20-1211(a)).
Employees need not file a complaint with the Department
before filing a civil action in court; however, if an employee
does choose to file a complaint with the Department,
they must either withdraw their complaint or have the
Department dismiss the complaint without prejudice
before filing in court (N.Y.C., N.Y., Admin. Code § 20-
1211(e)). The court action must be filed within two years
of the violation (N.Y.C., N.Y., Admin. Code § 20-1211(d)).
If the employee prevails, the court may order injunctive
relief, damages, and attorney fees (N.Y.C., N.Y., Admin.
Code § 20-1211(b)).
Advance Scheduling Notice. New York City’s law
requires fast food employers to provide advance
notice of an employee’s work schedule (N.Y.C., N.Y.,
Admin. Code § 20-1221(b)). An employer must
provide 14 days’ notice (N.Y.C., N.Y., Admin. Code
§ 20-1221(b)). The schedule must be in writing, be
posted in a conspicuous place that is readily accessible
and visible to all employees, and span at least one
full calendar week (N.Y.C., N.Y., Admin. Code §
20-1221(b); N.Y.C., N.Y., Admin. Code § 20-1221(c)
(1)). Further, an employee who has experienced
domestic violence or sexual assault may request that
their schedule not be posted or transmitted to other
employees (N.Y.C., N.Y., Admin. Rule § 7-605).
As for retail workers, employers must provide 72
hours’ notice of an employee’s work schedule (N.Y.
NEW YORK CITY’S FAIR WORKWEEK LAW
APPLIES TO:
• Fast food establishments that*:
• serve food and drink;
• are part of a chain; and
• have 30+ restaurants nationally.
• Retail establishments that:
• are primarily engaged in the sale of consumer
goods;
• have at least 1 store in NYC; and
• have 20+ employees total.
*Most provisions apply only to fast food establishments,
while some provisions apply to retail establishments.
Additionally, the right-to-request provision is not limited
to either of those industries. Please see the text for
further details.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 18
Admin. Code § 20-1252). The notice must be in
writing and posted in a conspicuous place that is
accessible and visible to all employees (N.Y. Admin.
Code § 20-1252).
Good Faith Estimates. Prior to the 2021 amendments,
fast food employers were required to provide a
written good faith estimate of an employee’s projected
days and hours of work. However, this requirement
has been replaced by the stable schedule requirement
described below.
Retail employers are not required to provide a good
faith estimate to their employees.
Stable Schedule Requirement. Since July 4, 2021,
fast food employers must adopt scheduling practices
that provide each employee with a stable schedule
that consists of a predictable, regular set of recurring
weekly shis (N.Y.C., N.Y., Admin. Code § 20-
1221(a)–(b)). The stable schedule must be provided in
writing to the employee (N.Y.C., N.Y., Admin. Code §
20-1221(a)). Additionally, unless consent is received,
an employer may not reduce an employee’s regularly
scheduled hours by “more than 15 percent from the
highest total hours contained in such employee’s
regular schedule at any time within the previous 12
months” (N.Y.C., N.Y., Admin. Code § 20-1221(a)).
Retail employers are not required to provide a stable
schedule to their employees.
Predictability Pay. If a fast food employer makes
any changes to the posted work schedule, they must
transmit it to the employee in writing within 24
hours of the change (N.Y.C., N.Y., Admin. Code §
20-1221(c)(2)). Additionally, any changes made to
an employee’s schedule within the above-described
notice period (14 days) triggers several employee
rights.
First, if the fast food employer adds to an employee’s
posted schedule within the notice period, the
employee has the right to decline those additional
hours (N.Y.C., N.Y., Admin. Code § 20-1221(d)).
Second, if an employer adds hours of work or changes
the date or time of a work shi (with no change in
the number of hours) with less than 14 days’ notice
but at least seven days’ notice to the employee, the
employee is entitled to $10 for the change in schedule
(N.Y.C., N.Y., Admin. Code § 20-1222(a)(1)). Third,
if an employer adds hours of work or changes the
date or time of a work shi (with no change in the
number of hours) with less than seven days’ notice
to the employee, the employee is entitled to $15 for
the change in schedule (N.Y.C., N.Y., Admin. Code §
20-1222(a)(3)). Fourth, if an employer cancels a shi
or subtracts hours from a shi with less than 14 days’
notice but at least seven days’ notice to the employee,
the employee is entitled to $20 for the change in
schedule (N.Y.C., N.Y., Admin. Code § 20-1222(a)
(2)). Fih, if an employer cancels a shi or subtracts
hours from a shi with less than seven days’ notice
to the employee, the employee is entitled to $45 for
the change in schedule (N.Y.C., N.Y., Admin. Code §
20-1222(a)(4)).
These schedule change and predictability pay
requirements are subject to several exceptions.
Specifically, a fast food employer is not required to
provide predictability pay where operations cannot
continue due to threats to employees or property,
failure of public utilities, a public transportation
shutdown, a natural disaster, or a state of emergency
(N.Y. Admin. Code §20-1222(c)). Additionally,
a fast food employer is not required to provide
predictability pay where employees request a schedule
change in writing or voluntarily trade shis with each
other (N.Y. Admin. Code §20-1222(c)). Finally, a fast
food employer need not provide predictability pay
where the schedule change requires the employer to
provide overtime pay (N.Y. Admin. Code §20-1222(c)).
Retail employers are not required to provide
predictability pay for schedule changes. However,
rather than being required to pay predictability
pay for changes within the 72-hour notice period,
retail employers are prohibited from scheduling
employees for on-call shis, cancelling shis with
less than 72 hours’ notice, or requiring employees
to work with less than 72 hours’ notice without the
employee’s consent (N.Y. Admin. Code § 20-1251).
These prohibitions are subject to several exceptions.
Employers may make schedule changes within the
notice period where operations cannot continue due
to threats to employees or property, failure of public
utilities, a public transportation shutdown, a natural
disaster, or a state of emergency (N.Y. Admin. Code
§20-1251(b)). Additionally, employers may grant
employee requests for time o within the notice
period and allow employees to trade shis with each
other within the notice period (N.Y. Admin. Code
§20-1251(b)).
Right to Rest Between Shifts. Fast food employees
have a right to decline any hours that are scheduled
less than 11 hours aer the end of the employee’s
prior shi or “spans two calendar days” (N.Y.C., N.Y.,
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 19
Admin. Code § 20-1231). However, an employee can
consent to work a shi that begins less than 11 hours
aer the end of their prior shi, but that consent
must be in writing (N.Y.C., N.Y., Admin. Code § 20-
1231). If an employee chooses to work such a shi,
that employee is entitled to be paid $100 for that shi
(N.Y.C., N.Y., Admin. Code § 20-1231). There is no
right to rest provision for retail employees.
Greater Access to Hours. New York City’s ordinance
requires fast food employers to oer any additional
shis that need to be filled first to existing employees
or former employees who are qualified to do the work
before attempting to hire new employees (N.Y.C.,
N.Y., Admin. Code § 20-1241(a)). When feasible,
employers should first oer additional shis to
former employees who were discharged for a “bona
fide economic reason” within the past 12 months
(N.Y.C., N.Y., Admin. Code § 20-1241(a)(1)). If the
additional shis are not filled by a former employee,
the employer must then oer any additional shis to
all current employees (N.Y.C., N.Y., Admin. Code §
20-1241(a)(2)). When distributing additional shis,
the employer cannot violate federal, state or local
discrimination laws (N.Y.C., N.Y., Admin. Code § 20-
1241(d)). There is no access to hours provision for
retail employees.
Right to Request Flexible Scheduling. Employees
have a right to request flexible or modified working
TABLE 4: LEGAL ASSESSMENT RESULTS FOR NEW YORK AS OF AUGUST 1, 2021
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice YES Fast food: 14 days’ notice
Retail: 72 hours’ notice
Good faith estimates NO* .
Stable schedule requirement YES Fast food only
Regular set of recurring weekly shifts
Predictability pay YES Fast food only
Addition of hours or change in time of shift with 7-14 days’
notice: $10 additional pay
Addition of hours or change in time of shift with less than 7
days’ notice: $15 additional pay
Reduction in hours or cancellation of shift with 7-14 days’
notice: $20 pay
Reduction in hours or cancellation of shift with less than 7
days’ notice: $45 pay
Right to rest between shifts YES Fast food only
11 hours
Greater access to hours YES Fast food only
Must be offered to current employees and former employees
Right to request flexible
scheduling
YES All industries
Employer must grant temporary work change request two
times per year when the request is due to certain “personal
events”
Anti-retaliation YES .
Day of rest YES 24 consecutive hours of rest every calendar week
Reporting pay YES 4 hours’ of minimum wage pay (or the number of hours for the
scheduled shift, whichever is less)
Split shift laws YES 1 hour of additional minimum wage pay
Predictable scheduling
preemption
NO .
*New York City formerly had a good faith estimate provision, but amended its fair workweek ordinance to replace that provision
with a stable schedule requirement, effective July 2021.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 20
schedules (N.Y.C., N.Y., Admin. Code § 20-1262(a)).
In July 2018, New York City added a provision to its
fair workweek law to provide employees with the
right to request schedule accommodations through
the use of two temporary schedule changes within
the calendar year to attend to personal events, such
as caregiving responsibilities (N.Y.C., N.Y., Admin.
Code § 20-1262(a)). These temporary schedule
changes could include working remotely, changing
the employee’s work schedule, or even taking unpaid
leave (N.Y.C., N.Y., Admin. Code § 20-1262(a)). Unlike
other provisions in the fair workweek law, the right
to request flexible scheduling applies to nearly all
employees in the city (it is not limited to just fast food
and retail workers).
Anti-Retaliation. Covered employers are prohibited
from retaliating against all employees who exercise
any right under the fair workweek law (N.Y.C., N.Y.,
Admin. Code § 20-1204). Employers are specifically
prohibited from taking any of the following adverse
actions in response to an employee’s exercise of
their rights: “threatening, intimidating, disciplining,
discharging, demoting, suspending or harassing an
employee, reducing the hours or pay of an employee,
informing another employer that an employee has
engaged in activities protected by this chapter, and
discriminating against the employee, including
actions related to perceived immigration status or
work authorization” (N.Y.C., N.Y., Admin. Code § 20-
1204).
Day of Rest. The state of New York requires certain
employers to provide 24 consecutive hours of rest
in every calendar week to their employees (N.Y. Lab.
Law § 161(1)). Covered employees include those
working in a factory, hotel, restaurant, and movie
theaters, as well as domestic workers (N.Y. Lab. Law
§ 161(1)).
Reporting Pay. The state of New York has also
implemented a regulation requiring reporting pay.
Under N.Y. Comp. Codes R. & Regs. tit. 12 § 142-
2.3, most employees are entitled to at least four
hours of minimum wage pay—or the number of
hours within the scheduled shi, whichever is less
— for shis where the employee reports for work
(regardless of whether the employee is sent home
13 In June 2021, the city council moved the Fair Workweek Ordinance from Chapter 1-25 to Chapter 6-110 in the municipal code.
14 Data is derived from 2019 ACS 1-year estimated detailed tables showing occupation by race and sex. These numbers include data in the following
occupations, as defined by ACS: health care practitioners, health care service workers, food preparation and service workers, building and maintenance
workers, sales (including retail) workers, and production (i.e. manufacturing) workers.
due to lack of work). Several types of employees are
explicitly excluded from this protection, including:
farm laborers, babysitters, certain executive and
administrative professionals, and taxi drivers (N.Y.
Comp. Codes R. & Regs. tit. 12 § 142-2.14).
Split Shift. The state of New York requires that
covered employees are compensated for split-
shis, which are defined as any shi that includes
nonconsecutive hours in the same day (unless the
break is one hour or less in duration) (N.Y. Comp.
Codes R. & Regs. tit. 12 § 142-2.4; N.Y. Comp. Codes
R. & Regs. tit. 12 § 142-2.17). If an employee is
scheduled for a split shi, they must be compensated
with an additional hour of minimum wage pay (N.Y.
Comp. Codes R. & Regs. tit. 12 § 142-2.4). Several
types of employees are explicitly excluded from this
protection, including: farm laborers, babysitters,
certain executive and administrative professionals,
and taxi drivers (N.Y. Comp. Codes R. & Regs. tit. 12 §
142-2.14).
Chicago, Illinois
Background
In July 2019, Chicago enacted its Fair Workweek
Ordinance, which has been hailed as one of the most
expansive fair workweek laws in the nation (Lyden,
2020, p. 116). Chicago’s ordinance contains several key
protections for workers: advance scheduling notice, good
faith estimates, predictability pay, access to hours, the
right to rest between shis, the right to request flexible
scheduling, and anti-retaliation protections. Most of its
provisions went into eect in July 2020.
13
Like many other
local fair workweek laws, Chicago’s ordinance applies only
to certain employees in designated industries. However, its
applicability is broader compared to most other localities
— it was the first fair workweek law to apply to more than
just the retail, food service, and hospitality industries
(Lyden, 2020, p. 116).
Although Chicago has not released ocial data about the
number of workers covered by the ordinance, recent census
data show that approximately 438,970 people in Chicago
over the age of 16 work in covered industries.
14
The actual
number of workers covered by the ordinance is likely
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 21
significantly lower because it only applies to lower-income
workers who are employed by large employers. Among
women, Black women are overrepresented in the health
care service industry, Latinx women are overrepresented
in the building and maintenance, food preparation and
service, retail, and manufacturing industries, and Asian
women are overrepresented in the health care practitioner,
health care service, food preparation and service, building
and maintenance, and manufacturing industries.
In addition to Chicago’s Fair Workweek Ordinance,
employees in Chicago are protected by a statewide day
of rest law. Illinois has not enacted any other standalone
protections.
Legal Analysis
Fair Workweek Law
Chicago’s fair workweek law applies only to certain
employees in certain industries. The industries covered
by the ordinance include: building services, health care,
hotels, manufacturing, restaurants, retail, and warehouse
services (Chicago Mun. Code § 6-110-020). To be covered
by the protections in the ordinance, an employee must:
(1) perform work as an employee (not a contractor) or
as a temporary worker subject to certain conditions;
(2) spend the majority of their working time physically
present in Chicago; (3) perform the majority of their work
in a covered industry; and (4) earn less than or equal to
$50,000 per year (if salaried) or $26 per hour (if hourly)
(Chicago Mun. Code § 6-110-020).
Additionally, Chicago’s ordinance only applies to certain
employers. To be subject to the ordinance’s requirements,
the employer must: (1) employ 100 or more employees
globally (or, if a nonprofit employer, 250 or more
employees), at least 50 of whom are covered employees,
and (2) be primarily engaged in a covered industry
(Chicago Mun. Code § 6-110-020).
Generally, employees cannot be forced to waive their rights
under the ordinance. However, covered employers and
employees can waive the requirements of the ordinance
in a bona fide collective bargaining agreement, so long
as the waiver is clear and unambiguous (Chicago Mun.
Code § 6-110-030). The ordinance does not interfere with
any collective bargaining agreements that were in force
on the eective date of the ordinance, nor does it prevent
employees from bargaining for conditions or protections
in excess of those laid out in the ordinance (Chicago Mun.
Code § 6-110-030).
The Chicago Department of Business Aairs and Consumer
Protection has the power to enforce the ordinance, as
well as the power to promulgate rules and regulations
in relation to administering and enforcing the ordinance
(Chicago Mun. Code § 6-110-120). Employers who violate
any provision of the ordinance are subject to a fine of
$300 to $500 for each oense (Chicago Mun. Code §
6-110-130)). Additionally, employers who violate the anti-
retaliation provision are subject to a $1,000 fine (Chicago
Mun. Code § 6-110-100(b)).
Further, employees may bring a civil cause of action for
violations of the ordinance, but only aer they exhaust
remedies with the Department by filing a complaint
with the Department and the Department has closed the
complaint (Chicago Mun. Code § 6-110140(a)). The cause
of action must be filed within two years of the violation
(Chicago Mun. Code § 6-110-140(b)). If the employee
prevails, they may recover damages, litigation costs,
and attorney fees (Chicago Mun. Code § 6-110-140(c)).
The private cause of action provision’s eective date was
delayed due to the COVID-19 pandemic, going into eect
January 1, 2021.
Advance Scheduling Notice. Chicago’s fair workweek
ordinance requires employers to provide advance
notice of an employee’s work schedule (Chicago Mun.
Code § 6-110-040(b)). The implementation of this
part of the ordinance has been staggered, so that
from July 1, 2020 to June 30, 2022, an employer must
provide 10 days’ notice, and beginning July 1, 2022,
an employer must provide 14 days’ notice (Chicago
Mun. Code § 6-110-040(b)(1)). The schedule must
be in writing, posted in a conspicuous place that is
readily accessible and visible to all employees, and
span at least one full calendar week (Chicago Mun.
Code § 6-110-040(b)(1); Chicago Fair Workweek Rule
1.03(a)). An employer may change the schedule aer
CHICAGO’S FAIR WORKWEEK LAW APPLIES
TO EMPLOYEES WHO:
• Working in building services, healthcare, hotels,
manufacturing, restaurants, retail, and warehouse
services;
• Spend the majority of their working time physically
present in Chicago;
• Earn less than $50,000/year or $26/hour;
• Work for an employer with 100+ employees
worldwide (or 250+ of nonprofit), at least 50 of
whom are covered employees; and
• Work for an employer who is primarly engages in a
covered industry.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 22
it is posted, without penalty, up until the required
notice period (in other words, if an employer posts
the schedule 20 days in advance, they may change and
repost the schedule up until 10 days in advance until
June 30, 2022) (Chicago Mun. Code § 6-110-040(b)(2)).
Employers are not subject to the advance notice
requirement if their employees self-schedule or
work in a venue that regularly hosts ticketed
events (Chicago Mun. Code § 6-110-040(b)(3)).
15
Additionally, an employee who has experienced
domestic violence or sexual assault — or who has
a family member who has experienced domestic
violence or sexual assault — may request that their
schedule not be posted or transmitted to other
employees (Chicago Mun. Code § 6-110-040(b)(4)).
Good Faith Estimates. Prior to or at the
commencement of employment, an employer must
provide a good faith estimate of an employee’s
projected days and hours of work (Chicago Mun.
Code § 6-110-040(a). The estimate must be in
writing, cover the first 90 days of employment, and
include the average number of weekly hours, any
expectation regarding on-call shis, and a subset of
days or times that the employee can expect to work
(Chicago Mun. Code § 6-110-040(a)(1)). An employee
has the right to request a modification to the estimate,
and an employer must consider (but need not accept)
that request and provide a written determination of
that request (Chicago Mun. Code § 6-110-040(a)(2)).
Predictability Pay. If an employer makes any changes
to the posted work schedule, they must transmit
it to the employee in writing within 24 hours of
the change (Chicago Mun. Code § 6-110-050(c).
Additionally, any changes made to an employee’s
schedule within the above-described notice period
(10 days, or 14 days beginning July 1, 2022) triggers
several employee rights.
16
First, if an employer adds hours to an employee’s
posted schedule within the notice period, the
employee has the right to decline those additional
hours (Chicago Mun. Code § 6-110-050(a)). Second, if
an employer adds hours of work or changes the date
or time of a work shi (with no change in the number
of hours) within the notice period, the employee is
15 Self-scheduling is defined as “the practice of an employee to self-select work shis without employer pre-approval pursuant to a mutually
acceptable agreement.” (Chicago Mun. Code § 6-110-020).
16 However, changes of 15 minutes or less do not trigger predictability pay requirements (Chicago Fair Workweek Rule 1.04(a)).
17 The Department has clarified that an employee is entitled to one hour of predictability pay for each shi that is changed within the notice period
(Chicago Fair Workweek Rule 1.04(d)–(f)).
entitled to one hour of pay in addition to their regular
rate of pay (Chicago Mun. Code § 6-110-050(b)(1)
(A)–(B)).
17
Third, if an employer cancels a shi or
subtracts hours from a shi within the notice period
but with at least 24 hours’ notice, the employee is also
entitled to one hour of predictability pay (Chicago
Mun. Code § 6-110-050(b)(1)(C)). Fourth, if an
employer cancels a shi or subtracts hours from a
shi with less than 24 hours’ notice — including
during the shi itself — the employee is entitled to
at least 50 percent of the regular rate of pay for the
scheduled shi (Chicago Mun. Code § 6-110-050(b)(2)).
These schedule changes and predictability pay
requirements are subject to several exceptions.
Critically, an employer is not required to provide
predictability pay if the schedule change is “mutually
agreed to” by the employer and employee and
confirmed in writing (Chicago Mun. Code § 6-110-
050(d)(3)). Additionally, no predictability pay is
required where the schedule change is the result
of a shi trade between employees, an employee
request, disciplinary action by the employer for just
cause, or certain events occurring to banquet events,
ticketing events, or manufacturing or health care
employees (Chicago Mun. Code § 6-110--050(d)(2),
(4)–(9)). Further, these requirements do not apply to
employees who self-schedule (Chicago Mun. Code §
6-110--050(d)(10)).
Finally, these schedule change and predictability
pay requirements do not apply where the change is
due to threats, public utility failures, acts of nature,
war, civil unrest, strikes, or pandemics (Chicago
Mun. Code § 6-110-050(d)(1)). The Commissioner
of the Department of Business Aairs and Consumer
Protection issued a rule in 2020 that clarified that
the COVID-19 outbreak qualifies as a “pandemic”
pursuant to the ordinance, and therefore these
requirements do not apply to any schedule changes
made because of the pandemic (Rule Pertaining
to COVID-19 and Chapter 1-25). Specifically, the
Commissioner explained that the Department will
consider “a Work Schedulechange to be ‘because’
of the pandemic only when the pandemic causes
the Employer to materially change its operating
hours, operating plan, or the goods or services
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 23
provided by the Employer, which results in the Work
Schedulechange” (Rule Pertaining to COVID-19 and
Chapter 1-25).
Right to Rest Between Shifts. Employees have a right
to decline any hours that are scheduled less than
10 hours aer the end of the employee’s prior shi
(Chicago Mun. Code § 6-110-070(a)). However, an
employee can consent to work a shi that begins
less than 10 hours aer the end of their prior shi,
but that consent must be in writing (Chicago Fair
Workweek Rule 1.06(a)). If an employee chooses to
work such a shi, that employee is entitled to be paid
a rate of 1.25 times their regular rate (Chicago Mun.
Code § 6-110-070(b)).
18
Greater Access to Hours. Chicago’s ordinance
requires employers to oer any additional shis
that need to be filled first to existing employees who
are qualified to do the work (Chicago Mun. Code §
6-110-060(a)). When practical, employers should
18 However, any hours in such a shi that are subject to overtime pay shall be paid as overtime (i.e., 1.5 times the regular rate of pay) (Chicago Fair
Workweek Rule 1.06(c)).
19 Those categories are: race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity or expression, disability, age, or
marital or familial status (Chicago Mun. Code § 1-25-060(b)(1)).
first oer additional shis to part-time employees
(Chicago Mun. Code § 6-110-060(b)(2)). If employees
reject those shis, the employer must then oer any
additional shis to temporary or seasonal workers
who have worked for the employer for at least two
weeks (Chicago Mun. Code § 6-110-060(a)). When
distributing additional shis, the employer cannot
discriminate on the basis of several protected
categories
19
(Chicago Mun. Code § 6-110-060(b)(1)).
Right to Request Flexible Scheduling. Employees
have a right to request flexible or modified working
schedules (Chicago Mun. Code § 6-110-080). This
right includes, but is not limited to, requests for
“additional shis or hours; changes in days of work;
changes in shi start and end times; permission to
exchange shis with other employees; limitations
on availability; part-time employment; job sharing
arrangements; reduction or change in work duties; or
part-year employment” (Chicago Mun. Code §
6-110-080).
TABLE 5: LEGAL ASSESSMENT RESULTS FOR CHICAGO, AS OF AUGUST 1, 2021
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice YES 10 days’ notice
Good faith estimates YES Prior to or at commencement of employment
Stable schedule requirement NO .
Predictability pay YES Any change with more than 24 hours’ notice: 1 hour of additional pay
Reduction or cancellation with less than 24 hours’ notice: 50% of pay
of the originally scheduled shift
Right to rest between shifts YES 10 hours
Greater access to hours YES Must be offered to existing employees
Right to request flexible
scheduling
YES No requirement to consider or grant requests
Anti-retaliation YES .
Day of rest YES 24 consecutive hours of rest every calendar week
Reporting pay NO .
Split shift laws NO .
Predictable scheduling
preemption
NO .
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 24
Anti-Retaliation. Employers are prohibited from
retaliating against employees who exercise any
right under the Chicago ordinance (Chicago Mun.
Code § 6-110-100(a)). Employers are specifically
prohibited from taking any of the following adverse
actions in response to an employee’s exercise of their
rights: “termination, denial of promotion, negative
evaluations, punitive schedule changes, punitive
decreases in the desirability of work assignments,
and other acts of harassment shown to be linked to
such exercise of rights” (Chicago Mun. Code § 6-110-
100(a)).
Day of Rest. In addition to Chicago’s fair workweek
ordinance, employees in Chicago are protected
by a statewide day of rest law. The day of rest
law was enacted in 1935 but was amended as
recently as 2018, and although it is not limited to
certain specified industries (unlike the Chicago fair
workweek ordinance), it outlines several types of
employees who are not covered by its provisions
through exceptions. For example, it does not apply to
part-time employees who work 20 hours or less per
calendar week, or to employees in the agriculture,
coal mining, security guard, or administrative
industries or professions (820 Ill. Comp. Stat.
140/2(b)). Additionally, the Illinois Director of
Labor has the power to grant permits to employers
authorizing employment on designated days of rest
(820 Ill. Comp. Stat. 140/8; Ill. Admin. Code tit. 56,
§ 220.200). The Illinois Department of Labor has the
power to enforce the day of rest provisions, as well
as the power to promulgate rules and regulations
relating to their administration and enforcement (820
Ill. Comp. Stat. 140/6). Employers who violate the
provisions are subject to a fine of $25 to $100 (820
Ill. Comp. Stat. 140/7).
Employees in Illinois are entitled to 24 consecutive
hours of rest in every calendar week (820 Ill.
Comp. Stat. 140/2(a)). Employers are required to
conspicuously post a schedule designating the day
of rest for each employee no later than noon on the
Friday before the workweek (820 Ill. Comp. Stat.
140/4; Ill. Admin. Code tit. 56, § 220.700). No
employee can be required to work on their designated
day of rest (820 Ill. Comp. Stat. 140/4; Ill. Admin.
Code tit. 56, § 220.125).
20 Data is derived from 2019 ACS 1-year estimated detailed tables showing occupation by race and sex. These numbers include data from the
following industries, as defined by ACS: food preparation and service occupations, and sales (including retail) occupations.
Philadelphia, Pennsylvania
Background
In December 2018, Philadelphia passed its fair workweek
ordinance to provide employees in the retail, hospitality,
and food industry with more consistent work schedules,
which became eective on April 1, 2020. However, the
predictability pay provision of the ordinance was delayed
until June 1, 2021 to provide businesses with relief during
the COVID-19 pandemic. Philadelphia’s law contains
several key protections for workers, including: advance
scheduling notice, good faith estimates, predictability pay,
the right to rest between shis, greater access to hours,
the right to request flexible scheduling, and anti-retaliation
protections.
Although Philadelphia has not released ocial data about
the number of workers covered by the law, recent data
show that approximately 106,523 people in Philadelphia
over the age of 16 work in retail and food preparation
and service industries.
20
However, the actual number of
covered workers is likely significantly lower because the
law only applies to workers employed by certain large
businesses. Notably, data show that, among women in
those occupations, Latinx women are overrepresented in
retail, and Asian women are overrepresented in both food
service and retail.
Legal Analysis
Fair Workweek Law
Philadelphia’s ordinance applies only to certain
employees in certain industries. The industries covered
by the ordinance are: retail, hospitality, and food service
(Philadelphia, Pa., Code § 9-4601(4)). To be covered
by the protections in the ordinance, an employee must:
perform work as a full-time, part-time, seasonal, or
temporary (not a contractor) employee (Philadelphia, Pa.,
Code § 9-4601(5)). Additionally, Philadelphia’s ordinance
only applies to certain employers. To be subject to the
ordinance’s requirements, the employer must: (1) employ
250 or more employees globally, and (2) have 30 or more
locations worldwide. (Philadelphia, Pa., Code § 9-4601(4)).
Finally, covered employers and employees can waive the
requirements of the ordinance in a bona fide collective
bargaining agreement, so long as the waiver is clear and
unambiguous (Philadelphia, Pa., Code § 9-4610).
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 25
The Philadelphia Oce of Benefits and Wage Compliance
has the power to enforce the ordinance (Philadelphia, Pa.,
Code § 9-4611(2)). Employers who violate any provision
of the ordinance are subject to damages, ranging from
$25 for failure to notify an employee to a change to the
schedule during within the notice period and $1,000 for
failure to provide a current employee with greater access
to hours before hiring a new employee (Philadelphia, Pa.,
Regulation 10). Additionally, the Oce of Benefits and
Wage Compliance may triple damages for employers who
have a history of violating the protections provided in the
fair workweek ordinance (Philadelphia, Pa., Regulation 10).
Further, employees may bring a civil cause of action
for violations of the ordinance (Philadelphia, Pa., Code
§ 9-4611(7)). However, the commencement of a civil
cause of action withdraws the complaint from the Oce
of Benefits and Wage Compliance (Philadelphia, Pa.,
Regulation 10(7)(a)). The cause of action must be
filed within two years of the violation (Philadelphia,
Pa., Regulation 10(9)). If the employee prevails, they
may recover damages, litigation costs, and attorney fees
(Philadelphia, Pa., Regulation 10(7)(c)).
Advance Scheduling Notice. Philadelphia requires
employers to provide advance notice of an employee’s
work schedule (Philadelphia, Pa., Code § 9-4602(4)).
The implementation of this part of the ordinance was
staggered from April 1, 2020 to December 31, 2020
employers were required to provide 10 days’ notice,
and since January 1, 2021, employers must provide
14 days’ notice (Philadelphia, Pa., Code § 9-4602(4);
Philadelphia, Pa., Regulation 1.1).
21
The schedule
must be in writing, be posted in a conspicuous place
that is readily accessible and visible to all employees
(Philadelphia, Pa., Code § 9-4602(4).
Good Faith Estimates. Prior to or at the
commencement of employment, an employer must
provide a good faith estimate of an employee’s
projected days and hours of work (Philadelphia, Pa.,
21 Implementation of the ordinance was delayed due to the public health crisis, with the ordinance becoming eective on April 1, 2020.
22 However, changes of 20 minutes or less do not trigger predictability pay requirements (Philadelphia, Pa., Code §9-4603(2)(d)).
Code § 9-4602(3)). The estimate must be in writing,
cover the first 90 days of employment, and include
the average number of weekly hours, any expectation
regarding on-call shis, and a subset of days or times
that the employee can expect to work (Philadelphia,
Pa., Code § 9-4602(1)). The Department of Labor’s
Oce of Worker Protections requires that covered
employers provide all new and existing employees
with a written good faith estimate by July 1, 2020
(Cox & Chewning, 2020; Philadelphia, Pa., Regulation 1.1a).
Predictability Pay. If an employer makes any changes
to the posted work schedule, the employer must
provide the employee with notice prior to making
the change and transmit it to the employee in writing
within 24 hours of the change (Philadelphia, Pa.,
Code § 9-4602(5)). Additionally, any changes made
to an employee’s schedule within the above-described
notice period (10 days, or 14 days beginning January
1, 2021) triggers several employee rights.
22
First, if an employer adds to an employee’s posted
schedule within the notice period, the employee
has the right to decline those additional hours
(Philadelphia, Pa., Code § 9-4602(6)). Second, if an
employer adds hours of work or changes the date or
time of a work shi (with no change in the number
of hours) within the notice period, the employee is
entitled to one hour of pay in addition to their regular
rate of pay (Philadelphia, Pa., Code § 9-4603(1)(a)).
Third, if an employer cancels a shi or subtracts
hours from a shi (regular or on-call) within the
notice period, the employee is entitled to 50 percent
of the regular rate of pay for the scheduled shi
(Philadelphia, Pa., Code § 9-4603(1)(b)). Any changes
to an employee’s schedule within the notice period
requires the employee’s written consent (Philadelphia,
Pa., Code § 9-4602(6)).
These schedule changes and predictability pay
requirements are subject to several exceptions.
Employees are not entitled to predictability pay for
changes due to an employee’s voluntary request,
voluntary trade shis among employees, or an
employee’s termination or other disciplinary measure
(Philadelphia, Pa., Code § 9-4603(2)(a), (b), (f),
(h)). Additionally, predictability pay does not apply
when operations cannot continue due to threats,
a public utility failure, a public transportation
shutdown, a natural disaster, a state of emergency,
PHILADELPHIA’S FAIR WORKWEEK LAW
APPLIES TO EMPLOYEES WHO WORK:
• In retail, hospitality, and food service industries; and
• For employers with 250+ employees and 30+
locations worldwide.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 26
or severe weather conditions (Philadelphia, Pa., Code
§ 9-4603(2)(c)). Employers are also not required
to provide predictability pay for certain specified
changes to ticketing events or banquet events
(Philadelphia, Pa., Code § 9-4603(2)(i), (j)). Finally,
employees are not entitled to predictability pay
where they volunteer to work in response to a mass
communication about the availability of additional
hours, so long as the communication is due to another
employee being unable to work (Philadelphia, Pa.,
Code § 9-4603(2)(e)).
The fair workweek ordinance became eective on
April 1, 2020 (Cox & Chewning, 2020; Philadelphia,
Pa., Regulation 1.1).
23
While the ordinance included
a predictability pay provision for employer-initiated
changes, the Oce of Benefits and Wage Compliance
chose to temporarily suspend enforcement of the
predictability pay provision due to the pandemic and
the “associated impacts on business activity” (Cox &
Chewning, 2020). Without this provision, employees
would not be compensated for changes made to the
schedule aer the advance notice period. However,
23 The law was enacted on December 20, 2018 and set to become eective on January 1, 2020. However, implementation of the ordinance, as well as
key provisions, were delayed due to the public health crisis. The ordinance became eective on April 1, 2020 and the predictability pay provision of the
ordinance became eective on June 1, 2021.
on June 1, 2021, the Oce of Benefits and Wage
Compliance began enforcing the predictability pay
provision of the ordinance, requiring that employees
are provided with predictability pay for employer-
initiated changes made aer advance notice period
(Philadelphia, Pa., Code § 9-4603(1)).
Right to Rest Between Shifts. Employees have a right
to decline any hours that are scheduled less than nine
hours aer the end of the employee’s prior shi or
“during the nine hours following the end of a shi
that spanned two days” (Philadelphia, Pa., Code §
9-4604(1)). However, an employee can consent to
work a shi that begins less than nine hours aer the
end of their prior shi, but that consent must be in
writing (Philadelphia, Pa., Code § 9-4604(1)). If an
employee chooses to work such a shi, that employee
is entitled to be paid $40 for that shi (Philadelphia,
Pa., Code § 9-4604(2)).
Greater Access to Hours. Philadelphia requires
employers to oer any additional shis that need to
be filled first to existing employees who are qualified
to do the work before attempting to hire additional
TABLE 6: LEGAL ASSESSMENT RESULTS FOR PHILADELPHIA, AS OF AUGUST 1, 2O21
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice YES 14 days’ notice
Good faith estimates YES Prior to or at commencement of employment
Stable schedule requirement NO .
Predictability pay YES Addition of hours or changes to shift: 1 hour additional pay
Reduction of hours or cancellation of shift: 50% of pay of
the originally scheduled shift
Right to rest between shifts YES 9 hours
Greater access to hours YES Must be offered to existing employees
Right to request flexible
scheduling
YES No requirement to consider or grant requests
Anti-retaliation YES .
Day of rest NO .
Reporting pay NO .
Split shift laws NO .
Predictable scheduling
preemption
NO .
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 27
employees (Philadelphia, Pa., Code § 9-4605).
When distributing additional shis, the employer
cannot discriminate on the basis of several protected
categories (Philadelphia, Pa., Code § 9-4605(3)(b)).
24
Right to Request Flexible Scheduling. Employees
have a right to request flexible or modified working
schedules (Philadelphia, Pa., Code § 9-4602(2)). This
right includes, but is not limited to, “(a) requests not
to be scheduled for work shis during certain days or
times or at certain locations; (b) requests not to work
on-call shis; (c) requests for certain hours, days, or
locations of work; and (d) requests for more or fewer
work hours” (Philadelphia, Pa., Code § 9-4602(2)).
Anti-Retaliation. Employers are prohibited from
retaliating against employees who exercise any right
under the Philadelphia ordinance (Philadelphia,
Pa., Code § 9-4606(1)). Employers are specifically
prohibited from taking any of the following adverse
actions in response to an employee’s exercise of
their rights: “threatening, intimidating, disciplining,
discharging, demoting, suspending or harassing
an employee; assigning an employee to a lesser
position in terms of job classification, job security,
or other condition of employment; reducing the
hours or pay of an employee or denying the employee
additional hours; and discriminating against the
employee, including actions or threats related to
perceived immigration status or work authorization”
(Philadelphia, Pa., Code § 9-4606(2)).
Oregon
Background
In August 2017, Oregon passed a fair workweek law to
provide employees in the retail, hospitality, and food service
industry with more consistent work schedules, which
became eective in July 2018. Unlike other jurisdictions
with fair workweek laws, Oregon has created a voluntary
standby list system, which exempts employers from
providing predictability pay to employees who consent to be
on the list and be contacted when additional shis arise.
24 Those categories are: race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity, disability, age, marital or familial
status, nor on the basis of family caregiving responsibilities or status as a student, and the employer may not distribute hours in a manner intended to
avoid application of the Patient Protection and Aordable Care Act, 42 U.S.C. § 18001 (Philadelphia, Pa., Code §9-4605(3)(b)).
25 Data is derived from 2019 ACS 1-year estimated detailed tables showing occupation by race and sex. These numbers include data from the
following industries, as defined by ACS: food preparation and service occupations, and sales (including retail) occupations.
26 Employers will be subject to a $500 fine for not displaying a poster of employees’ rights in a conspicuous and accessible place (Or. Rev. Stat. §
653.480(3)(a); Or. Rev. Stat. §653.460).
Recent data show that approximately 326,260 people
in Oregon over the age of 16 work in retail and food
preparation and service occupations.
25
However, the
actual number of covered workers is likely significantly
lower because the law only applies to workers employed
by certain large businesses. Among women in those
industries, Latinx, Asian, and Native American women are
overrepresented in food preparation and service, and Asian
women are overrepresented in retail.
Legal Analysis
Fair Workweek Law
Oregon’s law applies only to certain employees in certain
industries. The industries covered by the ordinance
include retail, hospitality, and food service (Or. Rev.
Stat. § 653.422(1)). Oregon’s law only applies to certain
employers. To be subject to the requirements, the employer
must employ 500 or more employees globally (Or. Rev. Stat.
§ 653.422(1)).
Employees can waive their right to predictability pay by
agreeing to be placed on a standby list (Or. Rev. Stat. §
653.432(4)). Additionally, employers are not required to
provide additional compensation, specifically predictability
pay or compensation for working a “clopening” shi,
when the employee is covered by a collective bargaining
agreement “that provides the employee a remedy equal to
or better than the remedy provided by ORS 653.442 or
653.455” (Or. Admin. R. 839-026-0060).
The Oregon Commissioner of the Bureau of Labor has
the power to enforce the ordinance (Or. Rev. Stat. §
653.480(1)). Employers who violate any provision of
the ordinance are subject to a fine of $1,000 (Or. Rev.
Stat. § 653.480(3)(b)).
26
Further, employees may bring a
civil cause of action for violations of the anti-retaliation
OREGON’S FAIR WORKWEEK LAW APPLIES
TO EMPLOYEES WHO WORK:
• In retail, hospitality, and food service industries; and
• For employers with 500+ employees worldwide.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 28
provision of the law (Or. Rev. Stat. § 659A.885(2)
(b)).
27
However, the commencement of a civil cause of
action precludes the employee from filing a complaint
with the Commissioner of the Bureau of Labor (Or. Rev.
Stat. § 659A.820(4)(a)). If the employee prevails, they
may recover damages and attorney fees (Or. Rev. Stat. §
659A.885(1)).
Advance Scheduling Notice. Oregon requires
employers to provide advance notice of an employee’s
work schedule (Or. Rev. Stat. § 653.436). The
implementation of this part of the ordinance was
staggered so that from July 1, 2018 to June 30,
2020, an employer was required to provide seven
days’ notice. Since July 1, 2020, an employer must
provide 14 days’ notice (Or. Rev. Stat. §653.436(1);
Or. Admin. R. 839-026-0030). The schedule must
be in writing, be posted in a conspicuous place that
is readily accessible and visible to all employees (Or.
Rev. Stat. § 653.436(2)).
Good Faith Estimates. At the commencement of
employment, an employer must provide a good faith
estimate of an employee’s projected days and hours of
27 The retaliation claim may not be related to the right to request flexible schedules, provided under Or. Rev. Stat. §653.450 (Or. Rev. Stat. §
659A.885(2)(b)).
28 However, changes of 30 minutes or less do not trigger predictability pay requirements (Or. Rev. Stat. § 653.455(3)(a)).
work (Or. Rev. Stat. § 653.428(1)). The estimate must
be in writing, cover the average number of hours an
employee can expect in a one-month period, explain
the voluntary standby list (providing written notice),
and any expectation regarding on-call shis (Or. Rev.
Stat. § 653.428(1)). The good faith estimate can be
based on schedule from a previous year for seasonal
or episodic employees (Or. Rev. Stat. § 653.428(1)).
Predictability Pay. If an employer makes any changes
to the posted work schedule, the employer must
provide the employee with timely notice of the change
(Or. Rev. Stat. § 653.436(5)(a)). Any changes made
to an employee’s schedule within the above-described
notice period (seven days, or 14 days beginning July
1, 2020) triggers several employee rights.
28
First, if an employer adds to an employee’s posted
schedule within the notice period, the employee
has the right to decline those additional hours (Or.
Rev. Stat. § 653.436(5)(b)). Second, if an employer
adds hours of work, changes the date or time of
a work shi (with no change in the number of
hours), or schedules an employee for an additional
TABLE 7: LEGAL ASSESSMENT RESULTS FOR OREGON, AS OF AUGUST 1, 2021
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice YES 14 days’ notice
Good faith estimates YES At commencement of employment
Stable schedule requirement NO .
Predictability pay YES Addition of hours or changes to shift: 1 hour additional pay
Reduction of hours, cancellation of shift, or not called in for
on-call shift: 50% of pay of the originally scheduled shift
Right to rest between shifts YES 10 hours
Greater access to hours NO .
Right to request flexible
scheduling
YES No requirement to grant requests
Anti-retaliation YES .
Day of rest NO .
Reporting pay NO .
Split shift laws NO .
Predictable scheduling
preemption
YES .
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 29
shi (including an on-call shi) within the notice
period, the employee is entitled to one hour of pay
in addition to their regular rate of pay (Or. Rev. Stat.
§ 653.455(2)(a)). Third, if an employer cancels a
shi, subtracts hours from a shi, or does not call
an employee in for an on-call shi, the employee
is entitled to at least 50 percent of the regular
rate of pay for the scheduled shi (Or. Rev. Stat. §
653.455(2)(b)).
These schedule changes and predictability pay
requirements are subject to several exceptions.
Employees who voluntarily switch shis among
themselves, request changes to their schedule in
writing, or consent to work additional hours to
address unanticipated customer needs or unexpected
employee absence are not entitled to predictability pay
(Or. Rev. Stat. § 653.455(3)(b)–(d), (k)). Additionally,
employees are not entitled to predictability pay for
schedule changes resulting from disciplinary action,
or when operations cannot continue due to threats,
a public utility failure, or a natural disaster (Or. Rev.
Stat. § 653.455(e)–(h)). Further, employers need
not pay predictability pay where operations change
because of alterations to or cancellation of a ticketed
event (Or. Rev. Stat. § 653.455(i)).
Finally, and crucially, employers may maintain a standby
list of employees that the employer will use to oer
additional hours to employees (Or. Rev. Stat. § 653.432).
However, predictability pay is not required when“an
employer requests that an employee on a voluntary
standby list work additional hours […] and the employee
consents to work the additional hours” (Or. Rev. Stat.
§ 653.455(3)(j)). Thus, an employee on the standby
list who accepts additional hours is not entitled to
predictability pay (Or. Rev. Stat. § 653.432(4)).
Right to Rest Between Shifts. Employees have a right
to decline any hours that are scheduled less than 10
hours aer the end of the employee’s prior shi or
within “the first 10 hours following the end of a work
shi or on-call shi that spanned two calendar days”
(Or. Rev. Stat. § 653.442(1)). However, an employee
can consent to work a shi that begins less than 10
hours aer the end of their prior shi (Or. Rev. Stat.
§ 653.442(1)). If an employee chooses to work such a
shi, that employee is entitled to be paid a rate of 1.5
times their regular rate (Or. Rev. Stat. § 653.442(2)).
29
29 This requirement does not apply to “split-shis” that take place in one calendar day (Or. Admin. R. 839-026-0040).
30 Data is derived from the 2019 ACS 1-year estimated detailed table showing the civilian employed population over the age of 16.
Right to Request Flexible Scheduling. Employees
have a right to request flexible or modified working
schedules (Or. Rev. Stat. § 653.450(1)). This right
includes, but is not limited to, requests to not be
scheduled to work certain shis during certain times
or at specific locations and “limitations or changes in
the employee’s work schedule availability, including
but not limited to child care needs” (Or. Rev. Stat. §
653.450(1)).
Anti-Retaliation. Employers are prohibited from
retaliating against employees who exercise any right
under the Oregon law (Or. Rev. Stat. § 653.470).
Employers are specifically prohibited from taking any
of the following adverse actions in response to an
employee’s exercise of their rights: “retaliate or in any
way discriminate against an individual with respect
to hire or tenure or any other term or condition of
employment because the individual has inquired
about the provisions” of the law (Or. Rev. Stat. §
653.470(2)).
Predictable Scheduling Preemption. Oregon’s fair
workweek law explicitly preempts local jurisdictions
from enacting laws regulating workplace scheduling
(Or. Rev. Stat. § 653.490(2)). However, it creates
an exception for certain public workers, allowing
local governments to enact such regulations for
workers who are employed or contracted by the local
government (Or. Rev. Stat. § 653.490(3)).
New Hampshire
Background
New Hampshire has not enacted a fair workweek law.
However, the state has enacted a day of rest law, a
reporting pay law, and a right-to-request law over the
course of several decades. These laws generally apply
to all employees across the state, with some exceptions.
Recent data estimate that there are approximately 735,493
workers over the age of 16 in the state.
30
Legal Analysis
Right to Request Flexible Scheduling. New
Hampshire prohibits employers from retaliating
against employees for requesting flexible work
schedules (N.H. Rev. Stat. § 275:37-b). However, the
law explicitly states that an employer is not required
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 30
to accommodate any request for a flexible schedule,
and an employee cannot sue an employer for failing
to accommodate such a request (N.H. Rev. Stat.
§ 275:37-b). The statute is not limited to certain
specified industries and applies to most workers
throughout the state.
31
It was enacted in 2016, around
the same time many other predictable scheduling and
fair workweek protections were being introduced and
enacted across the nation (Fair Workweek Initiative, n.d.).
The labor commissioner has the power to enforce the
right-to-request law, including by taking “appropriate
action” in response to employee complaints (N.H.
Rev. Stat. § 275.38). However, despite explicitly
prohibiting employer retaliation against an employee
for requesting a flexible schedule, the law is silent as
to whether an employee can bring a cause of action
for violations of the anti-retaliation provision.
Day of Rest. New Hampshire requires employers to
provide a designated day of rest to their employees
(N.H. Rev. Stat. §§ 275:32, 275:33). Specifically,
the law requires employers to provide one 24-hour
period to each employee per week (either on Sunday
31 However, by definition, employees do not include “persons engaged in domestic service in the home of the employer, or in agricultural service, or
in temporary or seasonal employment, or employees of any social club, fraternal, charitable, educational, religious, scientific or literary association, no
part of the net earnings of which inures to the benefit of any private individual” (N.H. Rev. Stat. §275:36).
or another designated day), and the employer cannot
require an employee to work on that designated day
(N.H. Rev. Stat. §§ 275:32, 275:33). The law was first
enacted in 1933 and recently amended in 2018 to
clarify that an employee can choose to work on their
designated day of rest (but cannot be required to do
so); prior to 2018, an employee was not allowed to
work in their day of rest (Whitley, 2018).
Unlike New Hampshire’s other standalone laws, the
day of rest provisions do not apply to several industries
and employees. For example, the laws do not apply to
employees in “hospitals, nursing homes, orphanages,
and homes for the aged” (N.H. Rev. Stat. §275:33-
a); employees who work for certain manufacturing
and transportation establishments (N.H. Rev. Stat.
§ 275:34); and several types of service employees,
including janitors, caretakers, newspaper workers,
farm workers, retail store workers, and hotel and
restaurant workers (N.H. Rev. Stat. § 275:35). Further,
employers and employees can agree to waive the
day of rest requirement “aer approval of the labor
commissioner where it appears for the best interests of
all parties concerned” (N.H. Rev. Stat. § 275:33-b).
TABLE 8: LEGAL ASSESSMENT RESULTS FOR NEW HAMPSHIRE, AS OF AUGUST 1, 2021
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice NO .
Good faith estimates NO .
Stable schedule requirement NO .
Predictability pay NO .
Right to rest between shifts NO .
Greater access to hours NO .
Right to request flexible
scheduling
YES No requirement to grant requests
Anti-retaliation NO .
Day of rest YES One designated 24-hour rest period per week
Reporting pay YES 2 hours’ of regular rate of pay
Split shift laws NO .
Predictable scheduling
preemption
NO .
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 31
Any employer who violates the day of rest provisions
is subject to a fine of not more than $50 (N.H. Rev.
Stat. § 275:32). The laws do not otherwise specify any
enforcement mechanisms.
Reporting Pay. New Hampshire’s reporting pay law
was first enacted in 1985. The legislative history
of the bill shows that it was intended to apply to
scenarios where an employee is called into work but
is then sent home without working and without pay
(Nashua Young Women’s Christian Association v.
State, 134 N.H. 681, 683–84 (N.H. Sup. Ct. 1991)
(citing to committee hearing minutes)). In 1991, the
Supreme Court of New Hampshire held that the law
does not apply to employees who were scheduled in
advance to work less than two hours (Nashua Young
Women’s Christian Association v. State, 134 N.H. at
684–85).
32
Under the current law, employers must pay employees
two hours’ worth of their regular pay on any day
that an employee reports to work at their employer’s
request (N.H. Rev. Stat. § 275:43-a).
33
However, if
an employer makes a “good faith eort” to notify an
employee not to report to work, the employer need
not pay wages pursuant to this provision (N.H. Rev.
Stat. § 275:43-a). If an employee reports to work
despite the employer’s attempt to notify them, the
employee must perform any duties assigned by the
employer (N.H. Rev. Stat. § 275:43-a).
The reporting pay statute is not limited to certain
industries and applies to most employers and
employees,
34
but there are several statutory and
regulatory exceptions. First, the law does not apply
to ski and snowboard instructors (N.H. Rev. Stat.
§275.43-a). Second, the law does not apply to
employees who report to work but then request
to leave (due to illness or emergency), so long as a
written explanation is entered on the employee’s time
records (N.H. Code Admin. R. Ann. Lab. 803.03(h)).
Third, the law does not apply to certain health care
32 One judge dissented from the ruling, finding instead that the statute was unambiguous and intended to create a minimum two-hour workday
because “[t]he eort of making one’s self available for labor mandates at least two hours of pay” (134 N.H. at 685).
33 The reporting pay statute was amended in 2021 to clarify the language around an exception to the law (applying to ski and snowboard
instructors), but the substance of the law remains the same (2021 New Hampshire Laws Ch. 23 (H.B. 303)). The amended version of the law went into
eect on July 5, 2021.
34 By definition, employers do not include “employers of domestic labor in the home of the employer, or farm labor where less than 5 persons are
employed.” N.H. Rev. Stat. § 275:42(I).
35 Vacuum preemption occurs when a state prohibits a locality from legislating on a topic without setting statewide standards through state-level law
or policy.
employees who voluntarily make schedule changes
to meet the needs of their clients (N.H. Code Admin.
R. Ann. Lab. 803.03(j)). Fourth, labor regulations
clarify that, consistent with the 1991 New Hampshire
Supreme Court holding, the statute does not apply
to employees who are consistently required to work
less than two hours per work day, so long as those
employees are notified in writing upon hire (N.H.
Code Admin. R. Ann. Lab. 803.03(i)).
An employee cannot waive their rights under the
reporting pay law (N.H. Rev. Stat. § 275:50). The
labor commissioner has the power to enforce the
law, including by evaluating complaints, conducting
investigations, and issuing decisions (N.H. Rev. Stat.
§ 275:51). Additionally, an employee may bring a
private cause of action in any court of competent
jurisdiction to recover unpaid wages and liquidated
damages (N.H. Rev. Stat. § 275:53).
Tennessee
Background
Tennessee has failed to enact any laws protecting workers
from unpredictable scheduling practices. Instead, the
state has preempted localities from passing predictable
scheduling ordinances, resulting in a regulatory vacuum.
35
Tennessee has been described as having “one of the
most formidable preemption landscapes in the country”
(Partnership for Working Families, 2019, p. 5). The state is
particularly hostile to workplace protections and preempts
localities from enacting various labor protections,
including minimum wage increases, anti-discrimination
protections, and paid leave laws (Partnership for Working
Families, 2019, pp. 12–14; Economic Policy Institute, 2019).
Recent data show that approximately 506,815 people in
Tennessee work in food service and retail, the industries
that are most likely to be covered by a fair workweek
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 32
law.
36
Yet, the regulatory vacuum created by Tennessee
leaves workers across the state vulnerable to precarious
scheduling and its eects.
Legal Analysis
Predictable Scheduling Preemption. In April 2017,
Tennessee passed a law prohibiting local governments
from “adopt[ing] or enforc[ing] any ordinance,
regulation, resolution, policy, or any other legal
requirement that regulates or imposes a requirement
upon an employer pertaining to employee scheduling
except when necessary to avoid creating a public
or private nuisance” (Tenn. Code § 7-51-1802(f)).
Research did not reveal any case law discussing the
provision.
The law was a standalone bill and there is no
publicly available legislative history that explains
the purpose of or motivation behind the bill. Prior
to the enactment of the preemption law, it appears
that no Tennessee locality regulated employer
scheduling; thus, the law was likely enacted
proactively in response to the growing national
36 Data is derived from the 2019 ACS 1-year estimated detailed table showing the number of people aged 16 and up employed in the following
occupations: food preparation and service, and sales (including retail).
37 For instance, the full statute prohibits localities from enacting ordinances that expand employer anti-discrimination rules, require employers to
provide health insurance to their employees, or mandate employers to implement family or sick leave policies.
movement of predictive scheduling laws (Blair et al.,
2020; Doroghazi, 2017). The law was codified into
an already-existing statute that preempts Tennessee
localities from enacting several other workplace
protections (Tenn. Code § 7-51-1802).
37
KEY FINDINGS: LEGAL ASSESSMENT
• There is no federal law regulating predictable
scheduling for workers in the U.S.
• Most jurisdictions have no law protecting workers
from unpredictable and unstable scheduling.
Although several jurisdictions have standalone laws
regulating discrete and disparate issues related to
workplace scheduling—such as day of rest laws and
right to request laws—there is little to no research
evaluating the eectiveness of such laws.
• Several states have moved in the opposite direction,
enacting preemption laws that prevent localities
from passing fair workweek laws and standalone
protections.
TABLE 9: LEGAL ASSESSMENT RESULTS FOR TENNESSEE, AS OF AUGUST 1, 2021
LEGAL PROVISIONS IS THERE A LAW? ADDITIONAL DETAILS
Advance scheduling notice NO .
Good faith estimates NO .
Stable schedule requirement NO .
Predictability pay NO .
Right to rest between shifts NO .
Greater access to hours NO .
Right to request flexible
scheduling
NO .
Anti-retaliation NO .
Day of rest NO .
Reporting pay NO .
Split shift laws NO .
Predictable scheduling
preemption
YES Specifically prohibits localities from passing laws
that regulate employee scheduling
.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 33
• Since 2014, a few jurisdictions (one state and six
cities) have filled in the gaps in federal legislation
by passing comprehensive fair workweek laws.
Although these laws typically contain many of
the same types of legal protections, the details
and exceptions to those protections vary widely.
Additionally, the applicability of these laws is
limited, with variations in the types of industries,
size of employers, and typesof employees covered.
Ultimately, many hourly workers are not covered by
these laws’ protections.
RAPID EVIDENCE ASSESSMENT
Unpredictable scheduling has been shown to increase
worker stress and work-family conflict, disrupting work-
family harmony (Golden, 2015). Further, workers with
unpredictable schedules are significantly more likely
to experience hunger, housing insecurity, and negative
impacts on their children’s wellbeing (Schneider &
Harknett, 2019). As Black and Latinx workers are
disproportionately represented in industries where
unpredictable scheduling is prevalent, such as the retail
and service sector, these workers are most likely to be
disproportionately exposed to these negative outcomes
(Schneider & Harknett, 2019).
Laws that aim to address schedule instability and improve
health outcomes for workers have the potential to oer
a layer of protection between employers and employees.
However, research assessing the direct eects of legal
interventions remains uncommon in many areas of health
policy (Ibrahim et al., 2017), and the study of predictable
scheduling laws is no exception.
In conducting this pilot assessment, the research team
conducted a search for evidence assessing the direct eects
of laws in the sample jurisdictions.
38
To identify relevant
studies, the team conducted searches in legal databases
such as Westlaw, in academic databases such as Google
Scholar, on state and local legislature websites, and on the
internet broadly. These searches were supplemented by
reviewing secondary sources analyzing the health eects
of unpredictable scheduling as well as secondary sources
discussing fair workweek laws generally. Additionally, the
38 Future studies examining employer implementation of fair workweek laws in New York City, Chicago, and Philadelphia are forthcoming (see West
Coast Poverty Center, 2019, p. 32).
39 The ordinance requires the city to contract with academic researchers to conduct an in-depth evaluation of the impact of the ordinance on
employers and employees aer the first and second year of its implementation (Seattle Mun. Code § 14.22.130(A)). The stated purpose of the evaluation
is to inform the city council of possible areas for revision of the ordinance, as well as to determine other industries that should be covered by the
ordinance (Seattle Mun. Code § 14.22.130(B)–(C)).
research team consulted with subject matter experts about
past, current, and future evaluations. Three published
studies were identified — two that focus on Seattle and one
on Oregon. Study findings are briefly summarized below.
Seattle Secure Scheduling Ordinance: Years 1 and 2
In addition to providing protection for some Seattle
workers, Seattle’s fair workweek law also mandates an
in-depth evaluation of the on-the-ground eects of those
protections (Seattle Mun. Code § 14.22.130(A); Harknett
et al., 2021).
39
Year 1 Worker Impact & Employer Implementation Report
(December 2019)
Researchers from the Secure Scheduling Working Group
collaborated with the West Coast Poverty Center to conduct
the Year 1 worker impact evaluation, which focused
on both worker impact and employer implementation
(West Coast Poverty Center, 2019). In the worker impact
section of the first-year evaluation, the researchers
examined the experience of 755 Seattle workers before
the implementation of the Seattle’s Secure Scheduling
ordinance to establish a baseline and 624 Seattle workers
aer the implementation of the ordinance — 146 of the
624 (23.4 percent) were also interviewed during the
baseline assessment (West Coast Poverty Center, 2019).
Researchers found that the ordinance had successfully
decreased unpredictable scheduling for workers across
several measures (West Coast Poverty Center, 2019).
Specifically, they found the share of workers who
received their schedule 14 days in advance increased by
20 percent, and the number of workers who received
additional compensation for employer-initiated schedule
changes more than doubled (West Coast Poverty Center,
2019, pp. 20–21). However, researchers also found that
the ordinance did not have a significant impact in other
areas; for instance, there was no significant change in the
number of workers who were required to be available for
on-call shis, and no significant change in the number
of employer-initiated shi changes (West Coast Poverty
Center, 2019, pp. 20–21).
The Year 1 evaluation also included an employer
implementation study to examine how frontline managers
were implementing the ordinance. Researchers surveyed
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 34
37 frontline managers at covered businesses (West Coast
Poverty Center, 2019). They found that, although nearly all
managers were familiar with the ordinance, many lacked
knowledge about the law’s specific requirements and were
unable to comply with those requirements completely and
consistently (West Coast Poverty Center, 2019, pp. 34–43).
Specifically, while most managers were able to consistently
comply with the advance notice and right to rest provisions
(finding those provisions easy to understand), most
managers found that the predictability pay provisions — as
well as its exceptions — were dicult to understand and
therefore implement (West Coast Poverty Center, 2019, pp.
10–11, 46–56). Many managers noted that they actively
tried to avoid predictability pay requirements; for example,
managers utilized the mass communication exception
to predictability pay requirements to avoid providing
additional pay when workers took on extra shis aer the
notice period (West Coast Poverty Center, 2019, pp. 11,
50–53). Further, many managers noted that they lacked
sucient support from their companies to learn about and
properly implement the ordinance (West Coast Poverty
Center, 2019, pp. 59–64).
Year 2 Worker Impact Report (January 2021)
Researchers from the Shi Project conducted the Year
2 worker impact evaluation, which focused solely
on workers’ experiences aer implementation of the
ordinance (Harknett et al., 2021).
40
Researchers from
the Shi Project surveyed 759 covered workers before
implementation of the ordinance to establish a baseline and
441 workers two years aer implementation of the Secure
Scheduling Ordinance — 182 of the 441 (41.3 percent)
were also surveyed during the baseline assessment, the
Year 1 assessment, or both (Harknett et al., 2021). The
second-year evaluation confirmed that the ordinance had
successfully improved workers’ schedule predictability and
stability (Harknett et al., 2021). The researchers found
an improvement in the number of workers who received
advance notice of their schedules, and also found that there
was a decrease in the number of workers who experienced
employer-initiated schedule changes and a reduction in
both on-call shis and clopening shis (Harknett et al.,
2021).
41
Further, the Year 2 evaluation found that the
ordinance led to improvements in several measures of
quality of life, including increases in happiness and sleep
quality and reductions in material hardship (Harknett et
al., 2021). However, the authors of the study cautioned
that the evaluation concluded before the commencement
40 The Year 2 Employer Implementation Report—focusing on frontline managers’ experience with the ordinance—is forthcoming and expected later
in 2021.
41 Some of these changes were within the study’s margin of error and therefore should be viewed with caution (Harknett et al., 2021, pp. 16–18).
of the COVID-19 pandemic and thus did not reflect how
the eects of the ordinance might be changed by pandemic
conditions (Harknett et al., 2021).
Persistent Unpredictability: Assessment the Impacts
of Oregon’s Employee Work Schedules Law
Researchers at the University of Oregon conducted a
study on the impact of Oregon’s fair workweek law on
employees (including management), by completing in-
depth interviews with 75 workers and 23 managers
(Loustaunau et al., 2020). The study found that managers
were encouraged to get workers to sign on to the
voluntary standby list to avoid providing predictability
pay (Loustaunau et al., 2020). Additionally, many workers
shared that they were asked to sign a waiver, stating that
employer-initiated changes to the schedule were actually
voluntary changes requested by the employee, in order to
waive predictability pay (Loustaunau et al., 2020). Some
employees reported feeling as though they had no choice
but to sign the waiver, as they would be unable to receive
additional hours otherwise (Loustaunau et al., 2020).
Researchers also found that employers framed employer-
initiated changes and requests for an employee to work
late, leave early, or begin a shi early as changes that the
employee volunteered to make to avoid having to provide
predictability pay. The fair workweek law was created to
compensate employees for last minute changes. However,
with the voluntary standby list and the use of waivers,
employees are rarely being provided with predictability pay.
Additionally, the study found that Oregon’s Bureau of
Labor and Industries lacks sucient funds to adequately
enforce the state fair workweek law or provide education
to workers (Loustaunau et al., 2020). Without these
enforcement measures, Oregon’s Bureau of Labor and
Industries relies solely on individual complaints from
employees stating that “we’re assuming that companies are
compliant unless workers come forward and say that they
are experiencing a violation, but we aren’t investing any
collective resources in educating workers or empowering
them to participate in the enforcement process”
(Loustaunau et al., 2020, pp. 17).
Moreover, the study found that employees who file a
complaint with the Bureau of Labor and Industries are
le waiting for a response that may never come with no
additional recourse (Loustaunau et al., 2020).
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 35
KEY FINDINGS: RAPID EVIDENCE
ASSESSMENT
The rapid evidence assessment indentified three published
studies that evaluated the eects of fair workweek laws
in Seattle and Oregon. Together, these studies found five
common themes:
• Fair workweek laws have the potential to improve
stable scheduling and workers’ lives.
• Both the implementation and enforcement of
fair workweek laws are key to their success and
where successfully implemented, these laws have
had demonstrable positive eects. Workers saw
improvements in schedule predictability and
stability, as well as increases in happiness and sleep
quality and reductions in material hardship.
• Oentimes, managers are tasked with implementing
the law, which can be complex and dicult to
understand. The lack of training and education
initiatives results in managers failing to comply with
these laws fully or consistently.
• Broad and numerous exceptions to fair workweek
provisions (particularly to predictability pay
requirements), combined with employers exploiting
those exceptions, can weaken the reach and positive
eect of these laws.
• More research is needed to evaluate the eect of
the COVID-19 pandemic on these laws, particularly
since some provisions were delayed or suspended in
response to the pandemic.
RECOMMENDATIONS
Laws regulating workplace scheduling are growing in
popularity and have gained momentum over the past
decade. However, most jurisdictions do not have a
comprehensive fair workweek law, resulting in a patchwork
of discrete and disparate standalone protections in some
jurisdictions, and no protection at all in many others.
Further, preemption laws have blocked local jurisdictions
from enacting workplace protections in several states. As
a result, many hourly workers across the nation lack legal
protection from the harms of unpredictable and unstable
scheduling practices.
Although the harms of unstable and unpredictable work
scheduling have been well founded, there is a dearth
of research evaluating the eect of laws that regulate
scheduling practices. However, early evaluations of fair
workweek laws in Seattle and Oregon show promise —
where the laws have been successfully implemented,
evidence demonstrates that they have succeeded in
reducing unpredictable scheduling practices and
improving workers’ health and wellbeing. Importantly,
these evaluations also point to several challenges facing
governments, employers, and workers in successfully
implementing fair workweek laws. Further, these
evaluations confirm that fair workweek laws apply to only
a small subset of hourly workers, ultimately leaving behind
many who are most vulnerable to unpredictable scheduling
harms.
Based on this pilot assessment of laws regulating workplace
scheduling and our review of the current evidence,
we determined that more research and comparative
evaluations could lead to a deeper understanding of
these laws, their impacts, and their potential to improve
population health. We outline several recommendations
for researchers, advocates, and policymakers; however, we
caution that these recommendations are not meant to be
exhaustive.
Use Law to Achieve Greater Workplace Protection for
Workers in the United States
Continue federal advocacy efforts. Federal law can create
widespread protection for workers across the U.S. The
federal government also has the authority to supersede
and reverse state preemption of local authority. As
states continue to enact laws that prevent and limit local
governments from protecting workers through preemption,
the time for federal action is now.
Continue state and local advocacy efforts. Although a
federal fair workweek law has the potential to have the
most far-reaching impact — and the ability to reach
workers in jurisdictions that have otherwise preempted
workplace regulations — we recognize that federal
legislation is oen slow-moving and that currently-
proposed federal legislation addressing workplace
scheduling has seen little movement since its inception in
2015. Thus, we urge advocates and policymakers to also
focus on enacting, improving, and expanding state and
local legislation regulating workplace scheduling.
Federal, state, and local policymakers and advocates
should consider the successes and challenges of
existing fair workweek laws. The most comprehensive
fair workweek laws include all of the following legal
protections: advance scheduling notice, good faith
estimates of worker hours (or, in New York City, a stable
schedule requirement), predictability pay, the right to rest
between shis, greater access to hours, the right to request
flexible scheduling, and anti-retaliation protections. In
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 36
addition to passing comprehensive fair workweek laws
or standalone protections, advocates and policymakers
should consider focusing on the following provisions when
championing and draing new legislation or amending
existing laws and ordinances at the state and local level:
• Expanding applicability. Broader applicability
to all employees would provide more employees
with legal protection. By including other low wage
industries with prevalent unpredictable scheduling
practices (as seen in Chicago), fair workweek laws
can have a greater impact on workers and, in turn,
better serve the disproportionate number of Black
and Latinx women employed by these industries.
Standalone laws passed at the state-level, such
as reporting pay laws and split-shi laws, oen
apply to most or all workers. However, most fair
workweek laws only apply to workers in the service
industry, such as the retail, fast food, and hospitality
industries. Newly enacted or amended laws should
expand applicability to more industries, as well
as to employees who work for smaller employers.
Going a step further, new laws could expand
applicability to all hourly workers — similar to
some state standalone protections, as well as other
labor and workplace laws (such as federal overtime
requirements).
• Eliminate excess exceptions and legal loopholes.
Excess exceptions can create loopholes for employers
to circumvent workplace protections intended for
their employees. This is especially glaring in the
enforcement of predictability pay requirements. In
fact, existing fair workweek laws contain numerous
exceptions that ultimately prevent workers from
being compensated for the addition, reduction,
or change in hours for a shi. Ultimately, these
exceptions undermine the eectiveness of these
laws’ ability to ensure workers have stable schedules
or are compensated for last-minute changes. Since
employers have been found to exploit exceptions,
legislatures should work to close these loopholes
so that fair workweek laws can more successfully
reduce schedule instability.
• Proactive intervention through implementation
and enforcement efforts. Fair workweek laws
were created in response to the issue of precarious
scheduling, with the goal of providing workers
with more stability and predictability in their
lives. However, implementation and enforcement
of existing laws continue to be an issue. Numerous
enforcement agencies regulating unpredictable
scheduling laws do not have the funding or capacity
to independently investigate employer compliance
with the law (Loustaunau et al., 2020). To ensure
compliance, enforcement agencies need to conduct
proactive investigations of employers that employ
covered employees, rather than relying primarily
(or even exclusively) on worker-initiated complaints.
Further, fair workweek laws should consider
developing practical and feasible implementation
and enforcement mechanisms within the law itself
(e.g., the need for public education, designating
a dedicated enforcement agency within the
government, and proactive investigations).
• Increase public awareness and education
campaigns. As laws are passed and amended, policy
stakeholders should prioritize public awareness
and education campaigns to increase the knowledge
base for all those that may benefit from being
informed. Employees cannot assert rights that they
are unaware of. Since many enforcement agencies
primarily, or even exclusively, rely on employee
complaints to address allegations of noncompliance,
additional funding and training must be conducted
to ensure that employees are aware of their rights.
This can be as simple as having “know your rights”
posters conspicuously posted in plain terms and
multiple languages, or as extensive as having
regular employee trainings. Relatedly, employers —
particularly frontline managers tasked with on-the-
ground implementation of scheduling provisions
— oen misunderstand the complexities of fair
workweek laws. State and local agencies tasked with
enforcing these laws should provide training and
education to employers so that those implementing
these provisions on the ground fully understand the law.
More — and More Timely — Evaluation of Laws
More — and more timely — research evaluating the direct
eects of law regulating predictable scheduling is needed.
The Seattle and Oregon evaluations demonstrate that
fair workweek laws have the potential to improve hourly
workers’ lives. However, they also highlight some of the
challenges presented by current iterations of these fair
workweek laws. These studies focus on legal eects within
their respective jurisdictions and no comparative research
evaluating laws across jurisdictions was identified. Given
the wide variation among laws — including dierences in
pay and notice requirements, enforcement mechanisms,
and the numerous exceptions to predictability pay —
robust comparative research and evaluation is needed to
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 37
better determine which provisions are most eective in
improving health outcomes for workers.
Further, the COVID-19 pandemic has drastically altered
workplaces in the U.S., especially for hourly workers in
health care and service industries. Future research must
include evaluation of how the pandemic has aected
implementation and enforcement of laws regulating
worker scheduling. To build upon this pilot assessment
and existing evaluations, future research can utilize
legal epidemiology to measure the eects of predictable
scheduling laws across jurisdictions and over time. Legal
evaluations using these methods can help to identify the
most (and least) eective legal provisions for advocates and
policymakers.
Critically, future research should focus on who benefits
from these laws and who gets le behind. We know that
women — especially Black and Latinx women — are most
burdened by unpredictable scheduling and its harms.
We also know that the current landscape of these laws is
patchy at best, with many laws applying only to people
working for large corporations in certain industries. Thus,
future research must evaluate the eect of fair workweek
laws on the populations most harmed by unpredictable
and unstable scheduling. Such evaluation is vital to
ensure that legal interventions are evidence-based and not
perpetuating existing inequities.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 38
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EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 43
APPENDIX A, RESEARCH PROTOCOL
Date of Protocol: Written in August 2021, edited in October 2021
Scope
A team of three lawyers conducted a pilotlegal assessmentto capture and analyze observable features
of state statutes and regulations, and local ordinancesand rules, in a sample of jurisdictions that
regulate workplace scheduling.
The report which originated from this research provides an overview of the federal legal landscape,
and examines state laws and local ordinances regulating predictable scheduling. Seven jurisdictions
— four cities (Seattle, New York City, Chicago, and Philadelphia) and three states (Oregon, New
Hampshire, and Tennessee) — were sampled to identify key features of these laws across jurisdictions.
In addition to the legal assessment of these seven jurisdictions, the researchers conducted a rapid
evidence assessment to identify existing empirical evidence that evaluates the direct eects of
fair workweek laws in the sample jurisdictions. Based on this research, the team developed policy
recommendations for advocates and policymakers.
Primary Data Collection
Project Dates: May 2021–October 2021
Dates Covered in this Report
This report broadly discusses the history of laws, when relevant and available, and the legal
assessment (which focused on the sample jurisdictions) captured the state of the law as of August 1,
2021.
Databases Used and Data Collection Methods
The research team consisted of two legal researchers and one supervisor. Westlaw Next, state
legislature websites, and city codes and regulations websites were used to conduct a legal scan and
identify which jurisdictions had laws in eect as of August 1, 2021, that seek to address unpredictable
scheduling. Subject matter experts, Elaine Zundl and Daniel Schneider from the Shi Project, Rachel
Deutsch from The Center for Popular Democracy, Laura Narefsky and Julie Vogtman from the National
Women’s Law Center, and Susan Lambert from the University of Chicago were consulted to assist with
defining the scope of the laws included in the legal assessment and to discuss empirical evidence and
policy recommendations related to this topic. The research team also conducted internet searches
using Google to find secondary sources to supplement their research, including resources developed
by The Center for Popular Democracy, the National Women’s Law Center, the Shi Project, the Economic
Policy Institute, and the Partnership for Working Families.
Once laws were identified, the team performed a legal assessment by conducting extensive,
independent research to identify all relevant statutes, regulations, and ordinances in the project’s
scope. Each jurisdiction was assessed to verify whether they had a law related to the legal provisions
(i.e., key legal variables) in scope. The following legal provisions were coded and published throughout
the report: advance scheduling notice, good faith estimates of worker hours, a stable schedule
requirement, predictability pay, the right to rest between shis, greater access to hours, the right
to request flexible scheduling, anti-retaliation protections, day of rest, reporting pay, split shi, and
predictable scheduling preemption.
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 44
Search Terms
Keyword searches included:
• unpredictable scheduling
• fair workweek
• predictability pay
• right-to-request
• predictive scheduling
• predicatable scheduling
• employee scheduling
• day of rest
• one day rest
• reporting pay
• call-in pay
• split shi
• flexible /3 schedul!
• predictable /3 schedul!
Slight permutations of these keyword searches (to include and exclude quotations and/or dashes) were
also used in the search engine (e.g., day of rest and “day of rest”)
The team also reviewed laws that were internally referenced by in-scope laws found through keyword
searches. Additionally, the team reviewed surrounding laws by looking at the tables of contents in
statutory codes and ordinances to ensure that all relevant laws were captured.
Inclusion and Exclusion Criteria
The research team included background information on proposed federal legislation regulating
workplace scheduling to provide context for the state and local jurisdictional analysis. However, the
primary focus on the report is on state and local laws that seek to address unpredictable scheduling in
the workplace. The research team excluded U.S. territories.
The following variables were included:
• Fair workweek laws: are also commonly known as predictable scheduling laws. We define these
laws as comprehensive packages of protections that specifically target unpredictable scheduling
practices and regulate several aspects of worker scheduling. They include all, or a combination
of, the specific provisions described below.
• Advance scheduling notice: requires employers to provide employees with notice by releasing
written schedules a minimum number of days before the first day of scheduled work.
• Stable schedule requirement: requires employers to provide employees with a stable
schedule consisting of a regular, recurring set of shis that the employee will work each week.
• Good faith estimate: requires employers to provide an estimate of the hours an employee
can expect to work from week to week, as well as whether the employee will be expected
to work on-call shis.
• Predictability pay: requires employers to compensate employees for employer-initiated
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 45
changes made to the schedule aer the advance notice period. New York City uses the
term “schedule change premium” instead of predictability pay.
• Right to rest between shifts: (“clopening protections”) requires employers to gain the
employee’s consent (and sometimes provide additional pay) before scheduling that
employee to work two shis in close succession (e.g., a closing shi and an opening shi
the next morning).
• Greater access to hours: requires employers to oer open work shis to existing
employees before hiring new employees to fill those shis.
• Right to request flexible scheduling: protects employees from retaliation when they
request flexible schedules and sometimes specify that workers may request flexible
schedules due to caregiving responsibilities.
• Anti-retaliation: prohibits employers from retaliating against employees who exercise any
of the rights guaranteed under a fair workweek law.
• Day of rest: requires employers to provide one day of rest in a work week for each employee —
a 24-hour period where an employee is not required to work.
• Reporting pay: requires employers to pay employees for showing up to a shi, even if that
employee is sent home without working.
• Split shift: require employers to provide additional pay to employees who are required to work
“split shis” — shis that include a gap of unpaid time on the same day (e.g. a shi requiring
work from 11 a.m.–2 p.m. and 4 p.m.–7 p.m.).
• Preemption: prevents local governments from enacting laws regulating workplace scheduling.
• Case law: (court cases that establish law through precedential decisions) interpreting the
meaning, scope, or applicability of statutes and regulations addressing workplace scheduling
was included (e.g., see New Hampshire).
The following variables were excluded:
• Part-time parity laws (requiring part-time and full-time workers to be treated equally with
respect to pay, benefits) (e.g., San Francisco Retail Workers Bill of Rights)
• “Just cause” protections (requiring employers to have just cause to fire an employee) were
broadly excluded; however, these provisions were briefly described where they were part of a
fair workweek law (e.g., New York City)
• Domestic Workers’ Bill of Rights laws
• Private employer policies
• Laws applicable to only government employees, police ocers, and firefighters
• Laws addressing whether reporting pay counts toward overtime computation
• Laws requiring employers to make reasonable accommodations to employees with respect to
religious days of rest and holidays
• When fair workweek laws were challenged in court, but legality of the statute and regulate was
upheld, the underlying case law confirming legality was excluded from the report
Information about the Sample Jurisdictions Included in the Report
The sample jurisdictions were selected based on several factors, including:
• The extent the jurisdiction has laws regulating predictable scheduling. Researchers aimed to
choose several jurisdictions with fair workweek laws to demonstrate the dierences between
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 46
those laws across jurisdictions, as well as one jurisdiction with no fair workweek law but
several standalone protections, and one jurisdiction with a restrictive preemption law and no
other protections in place.
• The demographic and political makeup of the jurisdiction. Researchers aimed to include
jurisdictions with varied levels of racial and ethnic diversity. Researchers also tried to avoid
including exclusively progressive jurisdictions.
• The existence of empirical assessments of the laws in that jurisdiction. Researchers aimed to
include jurisdictions whose laws have been evaluated for their impact on public health outcomes.
• The geographic location of the jurisdiction. Researchers aimed to include jurisdictions across
the United States.
Specific selection decisions are described below:
• New York City was selected due to its comprehensive, though narrow, fair workweek ordinance
for fast food employees. Additionally, New York City has one of the most demographically
diverse populations.
• Philadelphia and Chicago were selected, in part, to demonstrate how jurisdictions formally
changed or delayed implementation of their fair workweek laws during the COVID-19
pandemic. Chicago’s ordinance also applies to more industries than most other fair workweek laws.
• Oregon was selected because of its unique voluntary standby provision and since it is currently
the only state with a comprehensive fair workweek law.
• Tennessee was selected to explore preemption laws that prevent localities from enacting laws
that address unpredictable scheduling.
• San Francisco was initially added to our list of jurisdictions during the background/policy
research phase of the project. However, aer speaking with the Time’s Up, Measure Up team,
we decided that San Francisco would not add much to the current landscape, as we already
included several progressive West Coast jurisdictions.
• New Jersey was initially considered as a sample jurisdiction because it has a statewide
reporting-pay law. However, aer further research, New Hampshire was chosen in place of New
Jersey because, in addition to a reporting-pay law, New Hampshire also has a day-of-rest law
and a right-to-request law. Further, although both states are in the northeast, New Hampshire is
typically viewed politically as a less progressive and more of a “purple” state.
• Seattle was added to the sample of jurisdictions because its predictable scheduling ordinance
requires in-depth evaluations of the on-the-ground eects of the ordinance in the first and
second year aer enactment, and those evaluations provide valuable empirical evidence as to
the impact of predictable scheduling laws.
Information about Demographic Data Included in the Report
In the background section for each sample jurisdiction, researchers included brief demographic data
about that jurisdiction. That data was primarily derived from 2019 ACS 1-year estimated detailed tables
showing sex and race of workers by occupation of the civilian population older than 16 years old.
Please visit this website for more information about ACS data definitions and methods.
Information about the Rapid Evidence Assessment Included in the Report
In addition to searching for in-scope laws for each sample jurisdiction, the research team also
conducted a search for published evaluations assessing the direct eects of those laws. To identify
these evaluations, the team conducted searches in legal databases (e.g., Westlaw), in academic
databases (e.g., Google Scholar), on state and local legislature websites, and on the internet broadly
EXPLORING THE LEGAL RESPONSE TO UNPREDICTABLE SCHEDULING • 47
(e.g., Google). These searches were supplemented by reviewing references in secondary sources
analyzing the health eects of unpredictable scheduling, as well as secondary sources discussing fair
workweek laws generally. The team also consulted subject matter experts about past, current, and
future evaluations.
Quality Control
Research
Two researchers independently conducted legal scans to determine which jurisdictions had enacted
laws within the scope of the report. This research was supplemented by reviewing secondary sources.
Once the universe of laws were reviewed, the team developed the sampling criteria and selected the
seven jurisdictions to include in the report.
The sample of seven jurisdictions were split amongst the two researchers to conduct extensive,
independent research to identify all relevant statutes, regulations, ordinances, and rules in the
project’s scope. Jurisdictional research was supplemented by reviewing secondary sources and
consulting with subject matter experts.
Redundant Research
Aer the initial background and jurisdiction-specific research was conducted, the researchers flagged
areas for consultation and redundant research. Specific redundant research measures are described
below.
• To ensure accuracy in the state and local legal landscape section of the report, two researchers
independently conducted legal scans to determine:
• Which states and local jurisdictions had fair workweek laws;
• Which states had day of rest laws;
• Which states had reporting pay laws; and
• Which states had split shi laws.
• Additionally, two researchers independently researched and reviewed the following specific
provisions in our sample jurisdictions to ensure all in-scope laws were captured and correctly
described:
• The 2021 amendments to New York City’s fair workweek law;
• New York state’s day of rest, reporting pay, and split shi laws;
• New York City’s predictability pay requirements and exceptions;
• Philadelphia’s predictability pay requirements and exceptions;
• Oregon’s predictability pay requirements and exceptions;
• The applicability of New York City’s fair workweek law;
• The applicability of Philadelphia’s fair workweek law; and
• The applicability of Oregon’s fair workweek law.
The final report was closely reviewd by a subset of our subject matter experts, as acknowledged in the
body of the report.
