The Philadelphia City Council has passed a “Fair Workweek” Ordinance that places restrictions to large retail, hospitality and food service establishments. Effective January 1, 2020, such establishments are required to: (1) allow existing employees the right to first refuse additional hours before hiring new employees; (2) post and provide advance notice of work schedules; (3) provide predictability pay for any departures from the posted schedules and; (4) permit a rest period of nine hours between shifts. The ordinance is estimated to impact 130,000 workers in Philadelphia.
“Employer,” for the purpose of the ordinance, is any entity or person acting directly or indirectly in the interest of the employer in relation to the employee. This will affect employers with 30 or more worldwide locations and who have 250 or more full-time, part-time, or temporary compensated employees. The ordinance applies regardless of where the employees work. If the number of employees fluctuates, an average number of employees will be taken from the preceding calendar year.
When an employer has additional hours, the employer must first offer the hours to existing employees before hiring new employees. Under the ordinance, the additional hours must be offered at least 72 hours before the work shift. Further, the notice must be provided to all exiting employees in English and any other primary languages. Employers may hire new employees only after the following circumstances: (a) no employees accept the offer within 24 hours; (b) the employer receives written confirmation from eligible employees that they are not interested; (c) existing employees have already accepted a subset of the available shifts.
Employers will now also be required to provide written communication of employee schedules at least 14 days before the first day of the new schedule. Written communication may include print or electronic means including email, text message, applications, or other forms of communication that can be saved in their original format. The posting must be posted where employees typically expect to find their schedules.
Any changes, initiated by the employer, to an employee’s schedule after the required advance notice will trigger predictability pay. If no hours to the employee’s schedule are lost, predictability pay is calculated by one regular rate hour of pay. This must be paid when time is added to the shift or the date, time, or location is changed—regardless of whether hours of work are lost. When there is a reduction in the employee’s scheduled hours, at least one-half of the regular rate hour of pay must be paid. Predictability pay for tipped employees will be later determined by the city.
An employee may not be penalized if they decide to assert their right to rest for 9 hours between shifts. Employees are allowed to waive this right through written notice. However, if an employee chooses to waive their right to rest, employers will be required to pay $40 for each of these shifts.
While the ordinance will not be enforced until the start of 2020, it is in the best interest of employers to begin preparing to implement these changes now in order to best prepare for its enforcement in the coming months.
This article was authored by Samantha Martin. Samantha was a Law Clerk for McCausland Keen & Buckman during the Summer of 2019 through the Montgomery Bar Association’s 1L Diversity Internship Program. She is currently a rising 2L at Villanova University School of Law.