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Will FLSA soon require predictable schedules?

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In a recent interview, U.S. Department of Labor Wage and Hour Division Administrator David Weil hinted that the department may be “looking very actively at” guaranteeing employees predictable schedules under the Fair Labor Standards Act (FLSA).

If the department makes the change, employers could face fines and penalties for irregular scheduling.

Weil noted the Department identified scheduling as “one of the big work-life balance issues.”

Labor activists working to organize retail and other low-wage part-time workers have zeroed in on unpredictable schedules as a major bone of contention.

Retailers and food-service businesses increasingly use “just-in-time” scheduling that analyzes sales data and predicts staffing needs based on sophisticated algorithms. The result is that workers sometimes have less than 24 hours’ notice that they will need to report for a shift. Then, they may be sent home early if sales are slower than expected.

Weil said whether the FLSA covers scheduling was an “open question.” Weil also indicated he felt employers could exploit modern scheduling technology to make employee scheduling more predictable.

Any such change would require a Notice of Proposed Rulemaking followed by a public comment period. Another “open question” would be whether predictable scheduling fits every workplace. No doubt some exceptions would be necessary.

Employers may ultimately be more receptive to the scheduling idea than many think.

At least one employer apparently views scheduling the same way. Retail giant Walmart announced recently that by 2016, some hourly workers will have fixed schedules and all workers will know their schedule two and a half weeks in advance.

Walmart announced the move in February, at the same time it unveiled a new $9-an-hour company minimum wage. Labor activists have been particularly dogged in using pay and scheduling issues as cudgels against Walmart.

The scheduling policy may indicate that with the improving economy, employers are starting to think about retention costs more seriously. They may see predictable scheduling as a potentially inexpensive way to retain employees.

{ 1 comment… read it below or add one }

Sandy Kurtzman April 20, 2015 at 11:38 pm

Many, if not most, companies already offer advance scheduling so employees, at least theoretically, know their schedule two to three weeks in advance.
If employers are not forced to give employees a predictable schedule, they will continue to use part-time workers as a flexible workforce.
Under the current regime, employees cannot generally get a second job because it puts their schedule at the mercy of the scheduling whims of the first employer.

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