Predictability pay is additional compensation that certain employers must provide to their employees when their work schedules are changed on short notice. This type of additional pay, also known as “predictive scheduling compensation” is currently regulated in a number of cities and one state but the concept is gaining traction.
When in force, predictability pay is triggered when an employer makes changes to its published work schedule with little or no advance notice to its impacted employees. Such pay may also be required (where mandated) if an employer, again, without notice, cuts or adds time to an employee’s work schedule.
Finally, this type of pay would come into play if an employee was scheduled to work at one location but sent, with little or no notice, to another location for the same employer. The goal of predictive pay laws is to create fairness in the workplace, especially for those employees that otherwise deal with flexible and fluctuating schedules.
Typically, the law would require the payment of additional compensation if the employer adds additional time to the employee’s schedule without notice or elects to change the date, time or place of the work. The law would not allow additional compensation if the employee either requested the change or voluntarily agreed to cover for another employee.
Like overtime pay for non-exempt employees (over 40 hours per week), predictability pay is a premium paid on top of an employee’s regular rate of pay.
The amount of the additional compensation earned depends on the local or state employment laws. For example, cities like San Francisco, Emeryville, Berkeley and Los Angeles, California have predictability pay laws as do Chicago, New York City, Philadelphia and Seattle.
To date, Oregon is the only state with a predictability pay law on its books. Every law is different, and some laws require that there be more than 50 employees in the employer’s workforce before the law would apply.
Further, the amount of the premium, or how much an employer would have to pay as its premium rate, depends on the specific jurisdiction and terms of the law. But these laws are being added at a rapid pace throughout the country.
Under most of these laws, an impacted employee is entitled to an additional hour of pay at the employee’s regular rate of pay for each hour that the employee worked an adjusted schedule, specifically if the changes to the work schedule occurred less than fourteen (14) days before the scheduled shift. Fines for non-compliance range between $50-$500 per covered employee per day as well as the potential for a civil lawsuit for related damages (including attorneys’ fees).
Again, these laws only apply to hourly workers (otherwise considered non-exempt employees).
Ultimately, the best practices for employers who are subject to these laws would be to create as reliable a schedule as possible, provide good faith estimates of an employee’s planned work hours (addressing holidays in advance) and develop a plan to avoid making substantial changes to the regular work week schedule.
Employers should strive to plan their employees’ schedules in advance as much as possible and update the schedule regularly (sufficiently ahead of the scheduled shifts). Employers should also instruct their managers to avoid making last minute changes to their employees’ schedules and to maintain all records related to their schedules, including all employee communications.
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Scott Zucker is a partner in the law firm of Weissmann Zucker Euster + Katz P.C. in Atlanta, GA. Scott specializes in business litigation with an emphasis on real estate, landlord-tenant and construction law. For more visit www.wzlegal.com.
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This newsletter is for the purpose of providing general legal insight into the self-storage industry. It should not be substituted for the legal advice of your own attorney.
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