Tacoma, Washington Employment Lawyer

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Phone: 253-858-6601
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Flexible and Predictive Scheduling

In some occupations, the inability to have a flexible and predictable schedule has made it increasingly difficult for workers to balance other commitments, like providing child care, getting or keeping a second job, and accessing or receiving needed medical care, among other things.

 Workers who want to advocate for more predictable and stable schedules may fear retaliation if they do so. However, some employers permit employees flexibility in creating their schedule within parameters set by the employer. This flexible and predictive scheduling page explains current laws and trends in flexible and predictive scheduling. To learn more about your rights with respect to flexible and predictive scheduling please read below:

  1. What is flexible scheduling?
  2. What is predictive scheduling?
  3. What are the different types of flex-time scheduling?
  4. Does the Fair Labor Standards Act (FLSA) address flexible work schedules?
  5. What federal law covers flexible schedules for federal employees?
  6. What is “Just-In-Time” scheduling?
  7. What are the effects of unpredictable scheduling practices on employees?
  8. Does the Fair Labor Standards Act (FLSA) address predictable scheduling?
  9. Are there any federal laws that mandate predictive employee scheduling?
  10. Are there any state laws that mandate predictive employee scheduling?
  11. What is “clopening”?
  12. Are there scheduling protections to ensure that workers don’t have to do “clopening” shifts?

1. What is flexible scheduling?

Flexible scheduling is an alternative to the traditional 9 to 5, 40-hour work week. It allows an employee to work hours that differ from the normal start and stop time. Flexible scheduling gives employees stability in their schedule as well as opportunities to balance other commitments.

2. What is predictive scheduling?

Predictive or Predictable scheduling refers to employers providing employees advance notice of their work schedule, and minimizing alterations to an employee’s schedule once it is posted. Predictive scheduling operates to protect hourly workers, typically food service, retail, and hospitality employees, from unpredictable schedules, which can pose difficulties for employees trying to maintain a work-life balance.

3. What are the different types of flex-time scheduling?

Traditionally, there are different types of flexible scheduling that companies may consider for their workers to use. Common types include: 

-Flex/Alternative Work Schedule: A flex or alternative work schedule allows employees to vary start and end times on a weekly or daily basis. This, however, does not alter the total number of hours worked per week.

-Compressed Work Week: A compressed work week allows for an employee to work a 40-hour workweek but in less than the typical five workdays. For example, this can be four ten-hour work days.

-Flexplace/Telecommute: A flexplace or telecommute arrangement allows an employee to work remotely.

4. Does the Fair Labor Standards Act (FLSA) address flexible work schedules?

No, the FLSA is the act that governs American employment. However, the FLSA does not address flexible work schedules.

The Department of Labor has stated that “allowing employees to vary their arrival and/or departure time is a matter of agreement between the employer and the employee.”

5. What federal law covers flexible schedules for federal employees?

The Federal Employees Flexible and Compressed Work Schedules Act (FEFCWA) removes traditional scheduling requirements for government employees. Generally, federal law requires agencies to set traditional work hours over a Monday through Friday schedule. FEFCWA authorizes - but does not require – agencies to establish alternative work schedules. This can either be a flexible work schedule or a compressed work schedule.

Under a flexible work schedule, an agency still has the discretion to establish core hours that all employees must be at work. Employees are then allowed to vary their arrival and departure time around those core hours.  

6. What is “Just-In-Time” scheduling?

“Just-in-time” scheduling involves a tentative work schedule where employers analyze factors, including weather conditions and customer traffic, to schedule employees, often at the last minute.  This type of scheduling is used to maximize revenue but requires that employees always be available at a moment’s notice.

7. What are the effects of unpredictable scheduling practices?

The lack of stability and predictability in scheduling for employees in occupations like retail, food service, and hospitality makes it difficult to balance other commitments, like providing child care, getting or keeping a second job, and accessing and receiving needed medical care, among others responsibilities.

8. Does the Fair Labor Standards Act (FLSA) address predictable scheduling?

No, the FLSA does not regulate employee scheduling, with the exception of certain child labor provisions.

According to the Department of Labor “…an employer may change an employee's work hours without giving prior notice or obtaining the employee's consent (unless otherwise subject to a prior agreement between the employer and employee or the employee's representative).”

9. Are there any federal laws that mandate predictable employee scheduling?

Currently, there are no federal laws that cover predictive scheduling. However, that could soon change. Recently, Congress introduced a bill called the Schedules That Work Act, which would allow employees to “request changes to their work schedule without fear of retaliation and ensure that employers consider these requests.”

10. Are there any state laws that mandate predictable employee scheduling?

Yes, the state of Oregon is the first state to pass a predictable scheduling law. Some cities, such as San Jose, San Francisco, Seattle, New York City, and Washington, D.C. have also enacted laws related to predictive scheduling, which have added stability and predictability to worker’s income and schedules. Predictive scheduling laws are an emerging trend and employees should monitor local ordinances and state predictable scheduling enactments.

11. What is “clopening”?

“Clopening” is the scheduling practice of requiring employees who close the business at night to return and reopen in the morning.

This practice has come under increasing scrutiny. It does not offer enough rest time between shifts and makes it difficult for employees to fulfill responsibilities outside of work.

12. Are there scheduling protections to ensure that workers don’t have to do “clopening” shifts?

Currently, there are no federal or state labor laws that govern the intervals between shifts. However, certain unions have advocated that their members be off a minimum amount of time between shifts.

On the state level, bills have been introduced in Maryland, Massachusetts, and Minnesota, which would require employers to give workers at least 11 hours between shifts. These bills would also require compensation if employees are called in before 11 hours have passed between shifts.

Terry A. Venneberg Weekly Weekly

Topic of the Week

Social Networking & Computer Privacy

Generally, employers have the right to monitor their employees use of the Internet (including visiting social networking sites, checking e-mails, and instant messaging) on computers owned by the employer, during employees on-duty hours. Although federal l

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Major campaign to organize tech and video game industries launches, this week in the war on workers

There are increasing signs that workers in the tech industry are starting to see themselves as … workers. Maybe it's the 100-hour workweeks as video game companies get products ready for launch, or maybe it’s the layoffs that come after a big release.

Thought for the Week

"Employers are increasingly monitoring their employees’ social media activity. A key consideration is to avoid infringing the rights of employees under the Personal Data (Privacy) Ordinance. The Privacy Commissioner’s Guidelines on monitoring and personal data privacy at work are a helpful first port of call. They first stress the “3As” of undertaking a systematic assessment process to ensure that monitoring would be appropriate, ensuring that there are no less intrusive alternatives and ensuring that there is proper accountability for the collection of employees’ personal data. They then stress the “3Cs” of ensuring the clarity of an employer’s policy, ensuring that it’s communicated to employees and the safeguarding of data through proper controls. Employers should ensure that they clearly document and communicate their approach to monitoring."

–Kathryn Weaver, partner at Lewis Silkin

List of the Week

from Digital Information World

Social Media Use During Work Hours By Employees

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  • 56% of the employees who use social media for work still find social media as a distraction during their work.

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