The Seattle City Council unanimously passed the Secure Scheduling Ordinance (Ordinance) on September 19, 2016. The Ordinance imposes new requirements on certain employers in the retail and food services industries for their hourly, non-exempt employees who work in the city at least 50 percent of the time. A similar law went into effect in San Francisco last year. Seattle is the second major U.S. city to pass such an ordinance.
The Ordinance applies to employers in the retail and food services industries (defined broadly to include restaurants, food trucks, bars, and caterers) with 500 or more employees in the company worldwide or, for franchises, within the franchise network. In addition to the 500-employee requirement, full-service restaurants (that is, restaurants where patrons order and are served while seated) are covered by the Ordinance only if they have 40 or more physical locations.
The new requirements cannot be waived by employees except through collective bargaining between an employer and employees represented by a union. Employers must display a poster describing employee rights under the Ordinance in a conspicuous and accessible place at all affected workplaces. The new requirements include:
- Right to Request Input into Work Schedules. Employees may request not to be scheduled for certain shifts or shifts at certain locations, and they have the right to identify preferences for the hours and location of work. Employers must engage in an interactive process regarding such requests. If requests are due to “major life events” (including issues with an employee’s transportation or housing, serious health condition, child care responsibilities, enrollment in training or education programs, or a second job), the employer must grant the request unless the employer has a bona fide business reason for denying it. All denials must be in writing.
- Right to Rest Between Work Shifts. Employers must provide employees at least ten hours off between shifts unless employee consent is obtained. If an employee consents, the employer must pay the employee one and one-half times the employee’s regular rate of pay for hours worked that are less than ten hours apart.
- Advance Notice of Work Schedule. Employers must provide employees with written work schedules at least 14 days before the first day of the work schedule. Employees may decline to work any hours not included in the schedule.
- Compensation for Work Schedule Changes. If, without providing 14 days’ notice, an employer adds hours to an employee’s schedule or changes the employee’s shift with no loss of hours, the employer must pay the employee one additional hour of pay, in addition to wages earned. If the employer cancels some or all of an employee’s hours without proper notice, the employer must pay the employee half the employee’s regular hourly rate for all hours lost. There are certain exceptions to these two rules.
- Compensation for On-Call Shifts. An employer must pay an employee one-half the employee’s regular hourly rate for any scheduled hours the employee does not work after the employer scheduled the employee for an on-call shift for which the employee does not need to report to work. “On-call shift” is defined expansively and includes any time that the employer requires the employee to be available to work, regardless of whether the employee is located on or off the employer’s premises.
- Access to Hours for Existing Employees. When hours become available, employers must offer additional hours of work to existing employees before hiring new employees and must post written notice of newly available hours for at least three consecutive days before hiring new employees.
- Good Faith Estimate of Work Schedule. Employers must provide new employees with a good faith estimate of their future work schedules and provide updates annually or sooner if the employer expects that there will be a significant change to the estimate.
The Ordinance imposes new recordkeeping requirements mandating that employers keep written documentation demonstrating compliance with the Ordinance for a period of three years. An employer’s failure to keep proper records creates a rebuttable presumption that the employer violated the Ordinance for the periods and for each employee for whom records were not properly retained.
Penalties for Violations
The Ordinance provides for steep financial penalties for violators, including treble damages for unpaid compensation. In addition to treble damages, employers who retaliate against employees for exercising their rights under the Ordinance are liable for a mandatory penalty payable to the aggrieved party of up to $5,000. Additionally, the Seattle Office of Labor Standards can assess the costs of enforcing the Ordinance against employers, including, but not limited to, attorneys’ fees.
In addition to the enforcement authority granted to the Office of Labor Standards, the Ordinance creates a private right of action that allows employees to bring their own lawsuits against employers for alleged violations of the Ordinance.
© 2016 Perkins Coie LLP