In approximately a dozen states and a number of smaller municipalities across the U.S., including Illinois and Chicago, 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 the 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. And unpredictable and unstable work schedules have been fairly well documented in the food service and preparation industries, as well as in retail and commercial building cleaning 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.
Following are a few 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.
- Shift Scheduling Changes. Requiring employers to 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.
- 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.
- 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.
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 since scheduling practices can have a dramatic impact on labor costs.
For further information regarding this topic, please contact:
Jonathan M. Weis at firstname.lastname@example.org or 312-368-0100.
An Employer Can Be Liable for Accessing an Employee’s Personal Email Even if the Employee Engaged in Misconduct
Over the last several years, communication via email and text has become commonplace in the workplace. Oftentimes, employees use one device for both personal and work-related communication regardless of whether that device is employee-owned or employer-provided. There is no doubt that employers may have legitimate business reasons for monitoring employee communications. For example, an employee may leave the company and the employer is concerned that she has taken confidential information or illegally solicited clients. Employers feel entitled to review data stored on employer-provided, particularly where employees are instructed that the company owns the devices and has the right to monitor the data. As a general rule, the law supports employers here. An employer’s zeal to snoop, however, may subject it to both civil and criminal penalties under both federal and state statutes.
The Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA) both govern an employer’s ability to review electronic communications. The ECPA prohibits the interception of electronic communications, and the term “interception” as used in the ECPA has been interpreted narrowly. The SCA makes it illegal to “access without authorization a facility through which electronic communication service is provided,” making it illegal to obtain access to certain communications in electronic storage. With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail or Hotmail, the most frequent scenario is where the former employer is able to access the former employee’s web-based email account because the employee saved his username and password on a device provided by the employer. In these cases, courts have typically sided with the former employee and have been reluctant to punish the former employee for failing to take appropriate steps to secure their own personal information and allegedly private communications. The former employee’s own negligence in securing personal data is not a defense for the employer.
Bottom line – an employer should seek advice before accessing an employee’s personal email account without authorization even though it has the ability to do so.
For more information on this topic please contact:
Howard Teplinsky at:
312-368-0100 or email@example.com.
Amendments to Illinois Right to Privacy in the Workplace Act Expand Privacy Protections for Employees
On Jan. 1, 2017, amendments to the Illinois Right to Privacy in the Workplace Act (IRPWA) took effect expanding the protections of IRPWA to prevent employers from insisting on access to any employee’s “personal online accounts.” The broadened definition of “personal online accounts” now includes all “online accounts” “used by a person primarily for their personal purposes.” The IRPWA previously contained a narrower definition of the type of protected accounts and only prevented employers from seeking access to “social networking websites,” such as Facebook.
The amendments to IRPWA prohibit an employer or prospective employer from attempting to access employee social media accounts. The amendments state that employers cannot “request, require or coerce” an employee to: provide a username or password to any personal online account; authenticate or access a personal account in the presence of the employer; invite the employer to join a group affiliated with any personal account; or join an online account established by the employer. The amendments also widened the parameters of what constitutes a “personal online account,” which IRPWA now defines as any online account primarily used for personal purposes. Employers may still inquire about business and professional online accounts.
The IRPWA amendments do not prohibit employers from making inquiries regarding personal online accounts in certain limited circumstances, including to assure compliance with federal and Illinois law and to investigate an allegation based on specific information that alleges a violation of law.
Employers who violate IRPWA are subject to civil damages, including up to $500 per affected employee plus costs, attorneys’ fees, and actual damages, for willful and knowing violations. Further, any employer or prospective employer or its agent who violates IRPWA is guilty of a petty offense.
If you have any questions regarding this or any other employment related matter, please contact:
firstname.lastname@example.org or 312-368-0100.