Senate Bill 850, also referred to as the Fair Scheduling Act of 2020, would require grocery stores, restaurants and retail stores to provide employees with 21-day work schedules, at least seven calendar days in advance.
Employers must pay a worker not exempt from overtime a “modification pay” for each previously scheduled shift that the employer cancels or moves to another date or time, each previously unscheduled shift that the employer requires an employee to work, and for each on-call shift for which an employee is required to be available but is not called into work. If less than seven days’ notice is given to the employee, the modification pay shall consist of one hour at the employee’s regular rate of pay. If less than 24 hours of notice is given to the employee, the required modification pay must be half of that shift’s scheduled hours at the employee’s regular rate of pay, but no less than two hours nor more than four hours. The failure to pay modification pay can result in stiff fines of the amount withheld multiplied by three or $250, whichever is greater, with an aggregate penalty not to exceed $4,000. Additional penalties can occur in connection with any employer retaliation against a person who files a complaint regarding compliance.
There are exceptions for Acts of God, public utility failures, threats to employees or property, when two employees agree to trade shifts or when an employee previously scheduled to work that shift is fired, disciplined, calls in sick, or uses paid or unpaid time off required by law when the employer did not receive at least seven days’ notice of the absence. The law would also require covered businesses to post an informational poster regarding the right to modification pay.
As employers in the restaurant, retail or grocery business are aware, the scheduling of employees is a very difficult task. Conscientious employers often struggle to issue schedules in a timely fashion, usually because they are gathering information from employees regarding school, vacation, medical appointments, family plans and other commitments. Unfortunately, SB 850 fails to take into account the practical realities of running such a business and seeks to impose a strict system replete with penalties and pay requirements which are sure to increase costs and incite lawsuits, while conferring no real benefit on the public.
The author would like to gratefully acknowledge the assistance of Joanne Warriner.
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