After FLSA, get ready for secure scheduling

October 27, 2016
On December 1, revised regulations for the Fair Labor Standards Act (FLSA) come into force across the US, the final stage of a long timeline of changes necessary to meet a 2014 presidential labor law directive. The act will alter overtime arrangements and job classifications for many workers, but most employers are not prepared. In an increasingly regulatory environment, they have just one question on their mind.

What’s coming next?

The answers in the US, in Europe, and indeed in most of the economically developed world are likely to be these: more regulation, more complexity, and in particular a new guarantee of stability for hourly workers known as Secure Scheduling.

Non-compliance risk and complexity

In the US, the risk of failing to meet government labor regulation is severe. The Department of Labor (DoL) and its Wage and Hour Division (WHD) have helped over 1.7 million workers recover nearly $1.6 billion in back wages since 2009, and the number of federally filed wage and hour cases has more than quadrupled since 2000.

Not only has the WHD grown more vigorous in its execution of the law, but labor law itself has grown increasingly broad and complex in nature over recent years.

One reason for this is the accumulation of related laws and regulations levied by different bodies, which can differ at federal, state, county, and even town level. The situation is similarly complex in the European Union, where countries face both European and national legislation.

The next stage: secure scheduling

Against this complex background it would be surprising if employers did not occasionally make mistakes in keeping up with their obligations, and indeed many have. The law makes no distinction, however, between willful malpractice and mistaken oversight. Multi-million dollar class action lawsuits have recently been filed against major employers such as ADT, CVS, Kraft and CostCo for failing “to provide accurate, itemized wage statements.”

If employers are finding it difficult to accurately track wage statements, it is unlikely their systems and processes will cope with the next layer of legal complexity likely to follow in the US, Secure Scheduling.

Secure Scheduling aims to provide workers with more predictable working lives and fewer last-minute changes to their work hours. It began in June 2015 in San Francisco, where the Retail Workers Bill of Rights requires workers’ schedules be posted 14 days in advance. Changes to the schedule made less than 7 days in advance incur a penalty ranging from 1 to 4 hours of pay to the workers.

On September 20, Seattle unanimously passed its own Secure Scheduling Ordinance, with similar scope to San Francisco’s. In New York City, Mayor de Blasio is pushing for Fair Workweek legislation, and Washington, DC, looks set to follow with its Hours and Scheduling Stability Act.

Each of these proposed pieces of legislation does an important job in making the lives of low-income employees more predictable. Each is different, and each will require employers to use new, more sophisticated systems of managing the scheduling task.

A key role for HR

The person at the sharp end when companies go to court is usually the local line manager. It is he or she who has to keep track of things, but who is no expert in the law and its application. They have to combine a knowledge of the underlying rules (e.g., that a late schedule change incurs a penalty) with the particular conditions (e.g., that this particular worker needs to work a certain number of hours this week to maintain her benefits).

HR cannot help those who willfully disregard the law (although it should identify them and take action). The department can, however, support managers by putting in place the systems and processes to handle the complexities that will inevitably result from secure scheduling, enabling them to carry on managing despite an increasingly complicated legal environment.

Managers should not be asked to guess, but rather should be presented with choices and options. Rescheduling will sometimes be necessary, and the right system should help managers by making clear the implications of particular choices – whether it’s re-scheduling payments, or the need to provide staff with overtime.

HR cannot make these choices for the manager, but they can provide the information and systems to help make the right choice. It is the manager’s job to manage, not to be an expert in labor law. With the right systems, HR can help them succeed and the organization to avoid litigation.

Mitri Dahdaly, Director, Product Management, Infor
  • North America
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