Tag: Employment

Predictive Scheduling Legislation: What You Need to Know to Avoid Costly Surprises

In approximately a dozen states and a number of smaller municipalities across the U.S., initiatives have been introduced that would allow state and local governments to dictate how restaurants (and retailers) schedule their employees. Some view this approach as interfering with employers’ rights to control the workplace, while others view it as a necessary tool to protect the rights of food industry and other retail workers.  The impetus for the new rules – often referred to as predictive scheduling laws – emanates from the fact that workers often have very little ability to make adjustments to their work schedules in order to meet their responsibilities outside of work.  Unpredictable and unstable work schedules have been fairly well documented in the food service and preparation industries, as well as in retail and custodial occupations.

Predictive scheduling laws and proposals generally include certain common provisions: (i) advance posting of schedules, (ii) employer penalties for unexpected schedule changes, (iii) record-keeping requirements, and (iv) prohibitions on requiring employees to find replacements for scheduled shifts if they are unable to work. In Congress, the pending Schedules That Work Act would require that schedules be provided in writing two weeks in advance with penalties for changes made with less than 24 hours’ notice.  As those changes are implemented, restaurant owners are finding that they must make significant adjustments to how they run their businesses in order to stay in business.

“On-call” or “predictive scheduling” activists argue that retail employers too often use scheduling practices that directly interfere with employees’ personal lives and ability to plan around their work hours, while others believe government intervention in the scheduling of employees through a one-size-fits-all approach intrudes on the employer-employee relationship and creates unnecessary mandates on how a business should operate.  Many in the food service industry are concerned that predictive scheduling legislation will impede employers’ need to adapt to changing conditions in a store, particularly small, independently owned businesses that have limited staff and resources and may not be able to afford the penalties related to violations.  Some employees have also voiced concern that they could lose some of the flexibility that attracted them to the food service industry in the first place.

There are a variety of common components of predictive scheduling legislation.

  • Employee Scheduling Requests.  Giving employees the right to make scheduling requests without employer retaliation.  Employers would be required to consider scheduling requests from all employees and provide a response. In some instances (for healthcare issues for example), the employer would be required to grant the request unless there is a bona fide business reason not to do so—e.g., an inability to reorganize work among existing staff or the insufficiency of work during the periods the employee proposes to work. The right to request provision can be found in laws recently enacted in Vermont, New Hampshire, Seattle, Washington, and San Francisco and Emeryville, California.  (Similar laws have been in place for more than a decade in the United Kingdom.)
  • Shift Scheduling Changes.  Requiring employers to be pay employees for a minimum of four hours of work or the minimum number of hours in the scheduled shifts, whichever is fewer, when an employee is sent home from work early without being permitted to work his or her scheduled shift.  In addition, if an employee is required to call in less than 24 hours before the start of a potential shift to learn whether he or she is scheduled to work, an employer could be required to pay the employee a premium, equivalent to one hour of pay. This provision is found in eight states and the District of Columbia.
  • Split shift pay. If an employee is required to work a shift with nonconsecutive hours with a break of more than one hour between work periods, an employer could be required to pay the employee a premium for that shift, equivalent to one hour of pay. Provisions like this exist in District of Columbia and California.
  • Advance notice of schedules. When an employee is hired, an employer could be required to disclose the minimum number of hours an employee will be scheduled to work. If that minimum number changes, the employer could be required to give the employee two weeks’ notice of the new minimum hours before the change goes into effect. In addition, employers can be required to give employees their work schedules two weeks in advance and, if an employer makes changes to this work schedule with notice of only 24 hours or less, the employer could be required to pay the employee a premium, equivalent to one hour of pay. San Francisco, Seattle, New York City, and Emeryville, California have enacted laws to require employers to provide two weeks’ advance notice of schedules to employees in certain large retail and/or food service establishments.

In order to handle predictive scheduling mandates, business owners should explore software options and even retaining outside vendors that provide scheduling and labor management solutions.  A lack of training or understanding of predictive scheduling can be detrimental to a business’ bottom line, and scheduling practices can have a dramatic impact on labor costs.  As with most new legal developments in the food service industry (or any industry for that matter), training and education is key.

 For more information on this and other issues, contact our office at 312-368-0100 or Jon Weis at jweis@lgattorneys.com

 

Natalie A. Remien Joins Levin Ginsburg’s Intellectual Property and Corporate Practice Groups as Partner

Levin Ginsburg is pleased to announce that Natalie A. Remien has joined the firm as a Partner in its Intellectual Property and Corporate practice groups.

Natalie is an accomplished IP attorney with over 16 years of experience in Intellectual Property law.  Her practice includes handling matters in all aspects of intellectual property including trademark protection, licensing, domestic and international enforcement, and management of global trademark portfolios.  Ms. Remien regularly reviews advertising and packaging materials for clients to reduce risk of exposure due to false advertising, overbroad claims, and misuse of trademarks or copyrights.  Additionally, her practice includes domain name disputes, copyright protection and enforcement.

While companies often request Natalie for her understanding of intellectual property issues, they quickly learn that she also has a keen mind for spotting and resolving corporate and employment issues.  Natalie’s practice includes corporate counseling and review, negotiation and drafting of independent contractor agreements, work-for-hire agreements, employment agreements including non-compete and non-solicitation agreements, offer letters and termination and severance agreements.

Natalie has worked with clients in a broad cross section of industries including toys, games, athletics and fitness, nutrition, luxury goods, multinational retailing, food and beverages, automotive goods and services and insurance and financial services.

Natalie holds a Bachelor of Science in Business Administration from the University of Colorado, Boulder, with a dual emphasis in Finance and Marketing, and a Juris Doctorate from DePaul University College of Law.  Additionally, Natalie is certified in mediation from the Northwestern University College of Continuing Education.

Natalie is a champion for women in business and takes an active role in various women’s business organizations that foster the development and growth of women and minority-owned businesses.  In her free time, she enjoys learning about health and nutrition, and garnering skills that help inspire those around her to reach their true potential.

Attention Employers and Employment Agencies: Criminal Records and Criminal Histories of Prospective Employees Off-Limits at Application Stage!

The Job Opportunities for Qualified Applicants Act (the “Act”), a new Illinois statute, will become effective January 1, 2015. The Act restricts employers and employment agencies from inquiring about or requiring the disclosure of an employment applicant’s criminal record or criminal history at the application stage, i.e., until the employer or employment agency has determined the applicant is qualified for the position and notified the applicant that he or she has been selected for an interview or, if there is not an interview, until after a conditional offer of employment is made to the applicant.

The Act defines an employer as any person or private entity that has 15 or more employees in the current or preceding year and employment agencies as any person or entity regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer.

The prohibition on inquiring into an applicant’s criminal record or criminal history at the application stage does not apply for positions where: (i) employers are required to exclude applicants with certain criminal convictions from employment due to federal or state law; (ii) a standard fidelity bond or an equivalent bond is required and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining a bond; or (iii) employers employ individuals licensed under the Emergency Medical Services Systems Act.

Employers and employment agencies are allowed to notify applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law, or the employer’s policy. Therefore, if an employer has a company policy which would disqualify an applicant from being hired based on specific offenses, the employer may notify applicants in writing of that fact.

Civil penalties that apply to employers or employment agencies that violate the Act range from a warning for the first violation to a civil penalty of up to $1,500 for every 30 days that passes without the employer’s or employment agency’s compliance with the Act.

In addition to the new rules under the Act, the ban against employers and employment agencies inquiring into or using an arrest record or expunged criminal history as a basis to refuse to hire remains in effect.

To review your business’ employment application and procedures or to review your business’ policies regarding specific offenses which may disqualify an applicant, or develop a notice letter to potential employees, please contact:

Morris R. Saunders at:

(312) 368-0100 / msaunders@lgattorneys.com

or

Mitchell S. Chaban at:

(312) 368-0100 / mchaban@lgattorneys.com

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