Secure Scheduling 101

The Five W’s of Secure Scheduling

Why?

The Seattle City Council passed the Secure Scheduling Ordinance in response to the hard reality that retail and food service employees face in their day-to-day work. These employees experienced significant unpredictability in the workplace, including last minute schedule changes, inadequate hours, back-to-back shifts that prevent a good night’s sleep, and being on call without being paid. The ordinance gives these employees more stability in their schedules and opportunities to earn additional, predictable income if desired.

Who and where?

The ordinance applies to retail and food service establishments with 500 or more employees worldwide that operate in the City of Seattle. To be covered, full-service restaurants must also have at least 40 full-service locations worldwide. The ordinance applies to overtime-eligible employees who work at a fixed, point of sale location, and who work at a Seattle location for at least half of their work time.

What?

The following are the key rights and requirements under the ordinance:

Advance notice of work schedule. Employers must post work schedules 14 days in advance. Employees have the right to decline to work shifts not included on original schedules.

Premium pay for work schedule changes after schedule is posted. Employees have the right to additional pay for schedule changes on top of payment for hours worked, except under the circumstances outlined in the ordinance. For additional hours, employers must provide an additional hour of pay (which can be prorated if less than 1 hour is added). For subtracted hours, employers must pay for half the hours not worked for regular and on-call shifts.

Right to rest between work shifts. Employer must pay time-and-a-half for any hours worked between closing and opening (clopening) shifts that are separated by fewer than 10 hours.

Access to hours for current employees. Before hiring new employees, employers must offer additional hours of work to existing employees when hours become available.

Good faith estimate. For the upcoming year, employers must provide a written forecast of each employee’s median hours per work week and whether to expect on-call shifts.

Right to request input into work schedule. Employers must engage in an interactive process when employees request schedule preferences and grant requests related to major life events (employee’s transportation, housing, other job(s), education, caregiving, and self-care for serious health condition), unless there is a bona fide business reason (significant cost or disruption) for denial.

Retaliation prohibited. Employers may not interfere with an employee’s exercise of rights under the ordinance or take adverse action against an employee who has exercised their rights in good faith under the ordinance.

Employer records. Employers must maintain certain records regarding compliance with the ordinance for three years, including good faith estimates of employee work schedules, documentation regarding the employer’s bona fide reason for denying an employee’s request for a change in work schedule due to a major life event, work schedules, and documentation of additional compensation paid to each employee.

When?

The ordinance has a three-year statute of limitations.

Litigating Under the Ordinance

Litigation is essential to protect the rights of workers under the ordinance. OLS investigates many reported violations, but it does not have the resources to cover every worker complaint it receives. OLS receives approximately 1,000 worker inquiries each year, and the bulk of those inquiries are reports of labor standards violations. Private litigants can and should bring claims under the Secure Scheduling Ordinance.

The ordinance provides: “Any person or class of persons that suffers financial injury as a result of a violation of this Chapter … or is the subject of prohibited retaliation …, may bring a civil action in a court of competent jurisdiction against the employer or other person violating this Chapter….” The financial remedies are broad. Litigants may recover attorneys’ fees and costs, backpay, 12% prejudgment interest on unpaid wages, liquidated damages of twice the unpaid wages, and a retaliation penalty of $5,000.

"Litigation is essential to protect the rights of workers under the ordinance"

Several aspects of the ordinance should motivate private litigations to pursue claims. First, the ordinance explicitly states that employees may sue in their individual capacity or on behalf of a class of employees. Second, there is a statutory “rebuttable presumption of retaliation if the employer or any other person takes an adverse action against a person within 90 calendar days of the person’s exercise of rights” protected by the ordinance. This language places a significant burden on the employer to rebut the presumption of retaliation. Third, the plain language of the ordinance permits recovery of liquidated damages of twice the amount of the unpaid wages, allowing employees to recover a total of three times the wages they are owed. While litigants have mixed success in obtaining triple damages under Washington’s wage-and-hour laws, the Secure Scheduling ordinance leaves no room for ambiguity.

Finally, private litigants may be able to recover the civil penalties and fines outlined in the ordinance, including fines for specific violations and a $500 penalty per aggrieved party. Because of limited litigation on the merits of secure scheduling cases, Washington courts have not addressed this question. But the broad language regarding available remedies to litigants— ”such legal or equitable relief that may be appropriate to remedy the violation”—leaves open that possibility.

OLS Settlements

Since the ordinance went into effect on July 1, 2017, OLS has resolved 27 investigations and currently has 12 open investigations involving secure scheduling violations. OLS has assessed significant – over $3.2 million – financial remedies for employees. Some notable settlements from 2020 include:

  • An almost $2 million settlement on behalf of 803 affected workers with Macy’s to resolve allegations that the company failed to issue pay for schedule changes, failed to post schedules 14 days in advance in some instances, provided insufficient good faith estimates of hours to employees, provided insufficient notices of additional hours to existing employees, and failed to comply with the requirements around the right to request input into the work schedule for at least one employee. The employees received an average of $2,500, with some employees receiving over $10,000. Most of the financial remedy represented back wages and damages for pay for schedule changes (premium pay).

  • OLS recovered $27,954.31 for 89 affected employees to settle allegations against Euromarket Designs Inc. dba Crate & Barrel that the company failed to provide employees with 14 days’ advance notice of their work schedules; required employees to work closing and opening shifts separated by less than 10 hours; and failed to offer additional hours to existing employees before hiring outside employees.

  • Dick’s Sporting Goods settled allegations under the Secure Scheduling and Paid Sick and Safe Time Ordinances. Among other things, OLS alleged that the company failed to provide advance notice of work schedules and failed to provide pay for schedule changes for a short period of time. The total financial remedy was $45,864.48 to 120 affected employees.

  • OLS settled allegations against Fred Meyer that, among other things, the company failed to pay premium pay for work schedule changes. The total financial remedy was $616,437.63, which included $614,253.35 to 893 affected employees and $2,184.28 to the City of Seattle.

  • OLS settled claims under the Secure Scheduling and Paid Sick and Safe Time Ordinances with Emerald City Pizza, LLC dba Pizza Hut on behalf of 124 employees for $71,143.86 to 124. OLS alleged, among other things, that the company failed to provide 14 days’ advance notice of work schedules and failed to pay premium pay for work schedule changes.

Maria Bingham is a Senior Investigator with the City of Seattle Office of Labor Standards. The mission of the Office of Labor Standards is to advance labor standards through thoughtful community and business engagement, strategic enforcement, and innovative policy development, with a commitment to race and social justice.