Unintended Consequences of Predictive Scheduling?

December 2017

Last spring, Mayor de Blasio announced to the city of New York that predictable schedules and incomes were now a right, not a privilege. A new law has just gone into affect at the start of the holiday selling season, November 25th. It will require employers in the retail and fast food industries to plan the schedules of their non-salaried employees and alert those employees of their work schedules at least two weeks in advance. Employers will have to pay employees higher wages for any changes in the schedule after that two-week period. Employers will also be required to offer hours to existing employees before hiring any new workers.

Implementation of a one-size-fits all blanket bill over a massive amount of businesses was bound to meet some hiccups and criticism. The majority of people can agree that the intentions of predictive scheduling are good – no one wants to see businesses or workers weakened. The conflict lies in the specifics of the legislation that was passed. A lot of predictive scheduling rhetoric only amounts to theories regarding what the law could or could not do. While some employers are not necessarily anti-predictive scheduling, they are just weary of too much being implemented too fast without fully understanding the long and short-term effects on their business. The main criticism stems from the argument that the bill is anti-business and makes things more difficult for the employer. The burden largely falls on front-line management to comply with the new restrictions.

“Taking a new concept and accelerating it right out of the gate is far beyond the realm of reasonable for most employers,” states Richard Meneghello, a labor lawyer and partner at Fisher Phillips. Meneghello argues that a better option would have been allowing a ramp up period where New York was slowly settled into predictive scheduling laws, allowing businesses and employers more time to adjust for the change. He argues first implementing a watered-down version of predictive scheduling would make it easier to assess whether the law was working as intended.

Meneghello works with a majority of clients from the retail and hospitality businesses. “From what I hear from my clients, the single biggest complaint is the sheer administrative burden predictive scheduling will cause. It will be just about impossible to comply with the laws without completely changing the way they do business or using specialized software.”

Meneghello is talking about another possible unintended consequence of predictive scheduling: forcing companies to use new technology. There is a chance such constraints on business can drive companies to replace service workers, especially in the fast food industry, with automated devices instead of hourly employees. This would result in massive job loss and unemployment.

There is also a massive decrease in flexibility allowed for employers and workers. This makes it exceptionally difficult for employees who rely on and prefer their jobs that require unpredictable schedules, in that it could slash job availability or even render their fields obsolete.

According to a report from the U.S. Government Accountability Office, 40% of the workforce is now classified as contingent. This means that they are working as W2

employees, so predictive scheduling laws apply to them. Since contingent workers are hired on an on-demand basis, their fields demand flexibility.

“The nature of work is changing and it is becoming more flexible,” said Kathy Harrell-Latham, CEO of Cadre Scheduling and gig economy expert. “The rise of the contingent workforce is occurring for many reasons including the desire for a flexible work schedule. Unfortunately, the predictive scheduling laws passed or under consideration in various cities forces employers to cut or otherwise eliminate the desired flexibility.”

Another looming issue: some businesses just cannot afford it. “I have seen employers spend considerable sums to get into compliance with city promulgated workplace regulations,” said Harrell-Latham, “as a result, employers have cut or significantly reduced their contingent workforce. This is unfortunate as these temporary jobs can frequently serve as the important foot in the door or resume building experience the person desperately needed to find long-term employment.”

At the present time, it is too soon to see the long term effects of the law on New York businesses. The only way to truly know how predictive scheduling will impact New York is to wait and see.

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