As of June 1, 2021, the City of Philadelphia is enforcing the Fair Workweek Employment Standards Ordinance (the Ordinance), a bill passed by City Council in 2018, that in many ways impacts the retail, hospitality and food service industries. Among other things, the Ordinance requires covered employers that operate in Philadelphia to provide their employees predictable work schedules or face liability for violations.
The Ordinance applies to all non-exempt employees who work at or for a covered employer within the geographic boundaries of the City of Philadelphia and whose jobs involve the provision of retail, hospitality or food services.
For purposes of the Ordinance, a covered employer is defined as any employer that employs 250 or more employees and has 30 or more locations worldwide, regardless of where those employees work. This includes, but is not limited to, chain establishments or franchises associated with a franchisor or network of franchises that employ more than 250 employees in the aggregate.
The Ordinance requires that upon hiring, a covered employer must provide each relevant employee with a written, good faith estimate of the employee’s work schedule. A covered employer is also required to revise the good faith estimate when there is a significant change to the employee’s work schedule due to changes in the employee’s availability or the covered employer’s business needs.
This “good faith estimate” must contain: (a) the average number of work hours the employee can expect to work each week over a typical 90-day period; (b) whether the employee can expect to work any on-call shifts; and (c) a subset of days and a subset of times or shifts that the employee can typically expect to work, or days of the week and times or shifts on which the employee will not be scheduled to work.
Furthermore, employees are entitled under the Ordinance to make work schedule requests: (a) to work during certain hours or days, or at certain locations; (b) not to work on-call shifts; or (c) for more or fewer work hours.
The Ordinance encourages covered employers to engage in an interactive process with employees to discuss scheduling requests, but covered employers may grant or deny any request for any reason that is not otherwise unlawful.
The Ordinance requires covered employers to provide written notice of work schedules in a conspicuous and accessible location where employee notices are customarily posted. If the employer posts the notice in electronic format, the Ordinance requires that all employees in the workplace must have access to it on-site. The posted work schedule must include the employees’ shifts at that worksite, whether or not they are scheduled to work or be on-call that week, and the work schedule must be posted no later than 14 days before the first day of any new schedule.
In addition, the Ordinance requires that on or before the commencement of employment a covered employer must provide relevant employees with a written work schedule that runs no less than through the last date of the currently posted schedule.
When a covered employer initiates a change to a posted work schedule that occurs after the time that schedules must be posted under the Ordinance, the covered employer is required to pay an affected employee predictability pay at the following rates, in addition to the employee’s regular for hours actually worked:
(a) One hour of Predictability Pay at the employee’s regular rate of pay, when the covered employer adds time to a work shift or changes the date or time or location of a work shift, with no loss of hours.
(b) No less than one-half times the employee’s regular rate of pay per hour, for any scheduled hours the employee does not work due to hours being subtracted from a regular or on-call shift, or a regular or on-call shift is cancelled.
However, a covered employer is not required to pay predictability pay whenever:
(a) An employee requests a shift change by written communication, including but not limited to voluntary additions or subtractions of hours that are initiated by the employee, the use of sick leave, vacation leave or other leave policies offered by the employer;
(b) The schedule change is the result of a mutually agreed-upon shift trade or coverage arrangement between employees, subject to any employer policy regarding required conditions for employees to exchange shifts;
(c) The covered employer’s operations cannot begin or continue due to: (i) threats to the employees or the employer’s property; (ii) the failure of a public utility or the shutdown of public transportation; (iii) a fire, flood or other natural disaster; (iv) a state of emergency; or (v) severe weather conditions that disrupt transportation or pose a threat to employee safety.
(d) The employee begins or ends work no more than 20 minutes before or after the scheduled start or end time of the shift;
(e) The employee volunteers to work additional hours in response to a mass written communication from the covered employer about the availability of additional hours, provided that the mass communication is only used for additional hours that are the result of another employee being unable to work scheduled hours, and the communication makes clear that accepting such hours is voluntary and the employee has the right to decline such hours;
(f) Employee hours are subtracted due to termination of employment;
(g) Changes are made to a work schedule within 24 hours after the work schedule has been posted;
(h) The covered employer subtracts hours from an employee’s work schedule for disciplinary reasons pursuant to a multi-day suspension, provided that the employer documents in writing the incident leading to the disciplinary action;
(i) A ticketed event is cancelled, scheduled, rescheduled, postponed, delayed, increases in expected attendance by 20% or more, or increases in duration due to circumstances that are outside the covered employer’s control and that occur after the employer posts the written job schedule. Additional hours due to a change in a ticketed event’s duration that fall within this exemption are also fully exempt.
(j) A hotel banquet event is scheduled, due to circumstances that are outside the covered employer’s control, after the employer posts the written job schedule.
An employee may decline to work any hours or additional shifts not included in the posted work schedule. If the employee voluntarily consents to work such hours, consent must be recorded by written communication.
The Ordinance further limits certain industry practices known as a “clopen,” which refers to the practice of requiring an employee to close one evening and then reopen the following morning.
The Ordinance provides that an employee may decline, without penalty, any work hours that are scheduled or otherwise occur less than nine hours after the end of the previous day’s shift, or during the nine hours following the end of a shift that spanned two days.
The Ordinance allows an employee to consent to work such shifts. However, consent must be provided by written communication, either for each such shift or for multiple shifts, and may be revoked by written communication at any time.
If an employee agrees to “clopen,” then a covered employer is required under the Ordinance to compensate the employee $40 per shift for each instance that the employee works a “clopen.”
The requirements of the Ordinance may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unmistakable terms and only so long as the agreement is in effect contractually.
Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship do not constitute, or be permitted, as a waiver of all or any part of any of the requirements of the Ordinance.
Any aggrieved employee who believes that a covered employer interfered with their rights under the Ordinance, or believes that they have been retaliated against for exercising their rights under the Ordinance, is entitled to file an administrative complaint with the Philadelphia Department of Labor or bring a civil action seeking relief. All complaints must be brought within two years of the alleged violation.
Upon prevailing in any such action, an aggrieved person is entitled to recover, among other things, the full amount of any unpaid compensation (including predictability pay) to which they would have been entitled under the Ordinance, along with liquidated damages in an equal amount up to a maximum of $2,000.
Prevailing employees are also entitled to an award of reasonable attorneys’ fees and costs.
The Philadelphia Fair Workweek Employment Standards Ordinance provides employees in the retail, hospitality and food service industries with certain rights that go above and beyond those set forth under federal and state law.
For more information, please contact Lisa Scidurlo, Daniel Sobol, Wade Albert or the Stevens & Lee attorney with whom you regularly consult.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
