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Oregon will likely became the first state in the nation to enact a “predictive scheduling” law (also referred to as "restrictive scheduling" or "fair scheduling"), following the passage of similar local ordinances in San Francisco (2014), Emeryville, California (2016), Seattle (2016), and New York City (2017). Currently, the bill is awaiting Governor Kate Brown's (D) signature.

Mandates

The Oregon bill (OR SB 828) mandates that retail, hospitality, and food service employers with more than 500 employees:
  • must provide new employees with a written good-faith estimate of their work schedule indicating the median number of hours that the employee can expect to work per month;
  • must provide employees with a written work schedule seven calendar days in advance of their first shift (to be increased to 14 days in 2020); and
  • prohibits employers from scheduling employees to work during “rest periods” 10 hours after the completion of a work shift; and
  • allows employees to identify any limitations in their work schedule and request not to be scheduled to work at certain times or locations, though employers are not required to honor these requests.

Penalties

Under the legislation, employers are required to pay employees for an additional hour of work when:
  • employers add more than 30 minutes to an employee's shift;
  • a shift's date, start, or end time changes; or
  • an additional shift or on-call shift is scheduled within the seven-day advance notice period.
Employers are also required to pay employees half their normal rate of pay for all scheduled hours when:
  • hours are removed from an employee's shift;
  • a shift's date, start, or end time changes for a net loss of hours;
  • an employee's shift is canceled; or
  • the employee is on-call but not called into work.

Exceptions

However, there are a number of exceptions to these requirements. Most notably, one exception allows employers to maintain a standby list of employees that the employer may request to work additional hours when unanticipated customer needs arise, or when another employee is unexpectedly absent. Employee inclusion on the standby list is voluntary and employees have the right to decline any additional hours offered. Employees are also expressly allowed to swap shifts with each other voluntarily and request changes to their shifts. In both instances, employers are not required to provide them with additional pay for changes within the advance notice period.

Employers are also not required to pay additional wages when:
  • shift changes are less than 30 minutes;
  • shifts are canceled because of a natural disaster, utility outages, threats to employees or property, or a ticketed event is canceled; or
  • for disciplinary reasons with just cause.

State Map of Predictive Scheduling Legislation

Scheduling Bills Popular, But Preemption More Successful

In addition to Oregon, 12 states and the U.S. Congress debated predictive scheduling legislation this year, though none of the bills passed out of their chamber of origin. A similar number of states introduced legislation in 2015 and 2016. Thus far, states have been more successful in enacting legislation preempting localities from enacting scheduling ordinances. This year alone, Arkansas (AR SB 668), Georgia (GA HB 243), Iowa (IA HF 295), and Tennessee (TN SB 262) enacted laws preempting localities from regulating employees' schedules.