Philadelphia’s Fair Workweek Employment Standards Ordinance Targets Hospitality, Retail and Food Services Employers

In December 2018, Philadelphia enacted The Fair Workweek Employment Standards Ordinance, which has widespread ramifications for non-exempt workers in the retail, hospitality and food services industries. The ordinance, which takes effect January 1, 2020, targets employers with at least 250 employees and 30 locations worldwide and is aimed at providing full-time, part-time, seasonal and temporary workers with more predictability in their work schedules. It is expected to impact 130,000 workers in Philadelphia.

Beginning January 1, 2020, covered employers must provide employees with a written work schedule at least 10 days before the first day of the schedule. Starting January 1, 2021, employers must provide work schedules for at least 14 days in advance. Employers also must provide newly hired employees with a written, good faith estimate of the employee’s work schedule, including the average number of hours the employee can be expected to work each week over a typical 90-day period.

Employers must notify employees of any proposed changes to the posted work schedule as promptly as possible and prior to the change taking effect, generally within 24 hours after realizing a change is needed.  Employees have the right to decline to work any hours if they are not reflected on the originally posted work schedule or on a revised work schedule issued within 24 hours after the originally posted work schedule. Moreover, if an employer changes a posted work schedule more than 24 hours after the original work schedule is posted, it generally must pay the affected employees affected what is known as “Predictability Pay.” Predictability Pay is one (1) hour of pay at the employee’s regular rate for added time to a work shift or a change in the date, time or location of a work shift, with no loss of hours, and half-pay for any scheduled hours the employee does not work because the hours were subtracted from the shift or the shift was canceled.  This money is, in addition, to pay for any hours the employee works.

The ordinance further provides for a minimum of nine (9) hours of rest between shifts. Employees must be paid $40 per shift if they choose to work within less than nine (9) hours after their previous shift, in addition, to pay for the actual hours they work.

The ordinance contains additional requirements. These include, but are not limited to (i) mandating that employers offer work shifts to existing employees before hiring new employees or subcontracting the work; (ii) applying the ordinance to union employees, unless the employer and the union waive the ordinance requirements in their collective bargaining agreements; and (iii) allowing employees to request not to work on-call shifts, to be (or not to be) scheduled for certain shifts, days, times, or locations, and to work more or fewer hours.

Employees who believe that their employer violated the ordinance, can file an administrative complaint with the agency that will be charged with enforcing the ordinance or file a lawsuit in court and seek back pay, presumed damages, liquidated damages up to $2,000, attorneys’ fees, reinstatement, and other equitable relief.

Notably, this post highlights some, but not all, of the ordinance’s key requirements. The ordinance has extensive documentation and recordkeeping requirements and non-retaliation provisions not covered in this post.  Moreover, the Mayor still must designate what agency will administer and enforce the ordinance and that agency may issue regulations to further define the ordinance’s requirements.

At this point, covered employers should focus on the following:

  • Analyzing work schedules from the last year or two to help managers recognize schedule trends and create realistic work schedules at least two weeks in advance;
  • Familiarizing themselves on the ordinance’s documentation, recordkeeping, and non-retaliation requirements;
  • Planning a detailed training program for those who create and manage work schedules, handle payroll hours, and/or interact with employees on their requests for work hours or schedule changes; and
  • Keeping an eye out for more information on this ordinance as the year progresses.
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Posted in Labor & Employment, Wage and Hour

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HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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