Warren Bill Would Establish Bargaining Rights for All Employees Over Scheduling, Work Location

October 18, 2019

Presidential candidate Sen. Elizabeth Warren (D-MA) announced plans to reintroduce legislation establishing broad scheduling rights for all employees, including a right to negotiate with their employer over scheduling (including on-call and advance notice) and work location, with additional requirements for retail, food service, cleaning, hospitality, or warehouse employees, and specific obligations for employers.

Under the Schedules That Work Act all employees would have a right to request a change in:

  • The number of hours they work;
  • The times when the employee is required to work or be on call;
  • The location where they work;
  • The amount of notification the employee receives for they work schedule; and
  • The degree to which the number of hours they work fluctuates on a daily, weekly, or monthly basis.

All employers with 15 or more employees would be required to engage “in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee’s needs.”  Denial of the request would require consideration of other alternatives and a statement of the reason for denial.

Requests for changes due to a serious health condition, caregiver responsibilities, a second job, enrollment in an educational or training program would have to be granted, unless the employer could demonstrate a “bona fide business reason,” which is defined in the bill involving several alternative factors (such as an inability to reorganize the work among existing staff).

For nonexempt employees in retail, food service, cleaning, hospitality, and warehouse jobs, employers would be required to provide advance notice of their work schedules and grant additional pay when workers are put “on-call” without any guarantee that work will be available; are sent home early on slow days; are scheduled for a “split shift;” or receive schedule changes or shifts are cancelled with less than two weeks’ notice.

Rest between shifts:  Employers would be prohibited from requiring employees to work with less than eleven hours of rest between shifts and would be required pay employees time and a half if they voluntarily agree with less than 11 hours rest.

The bill allows states to enact broader rights and protections setting the stage for another maze of varying state and local laws.  Currently, one state (Oregon) and 6 cities have predictive scheduling laws.

Collective bargaining exclusion:  The bill includes a limited exclusion for employees covered by a collective bargaining agreement, as long as the terms of the agreement address work scheduling practices and the provisions of this bill are expressly waived.

Why it’s important:  The Warren bill has been re-introduced by various sponsors in several Congresses with little action or attention.  However, its protections have gained significant momentum at the state and local level and it could be a priority in a Warren (or any other Democratic) administration.