Do Employees Have a Legal “Right” to a “Predictable” Schedule?

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By John E. Thompson

U.S. Wage and Hour Division Administrator David Weil reportedly has said that the Division is “looking very actively at” the question of whether workers should be legally entitled to “predictable scheduling.”

In recounting Weil’s statements in a recent interview, the Daily Labor Report characterized his remarks as having to do with whether an employee has an enforceable right to a predictable, stable work schedule or to some sort of advance notice of that schedule.

And the source of this “right” is … ?

According to DLR, Weil sees it as being “an open question” whether such a supposed obligation falls within the purview of the current federal Fair Labor Standards Act.

It would certainly be news to Wage and Hour Division officials of the past to learn that there is any such purported question, particularly those who have expressly said that the FLSA neither regulates work schedules nor restricts an employer’s utilization of its adult workforce in any other way, so long as the law’s minimum-wage and overtime requirements are satisfied.

Perhaps this hints at the inclusion of some such requirement(s) in connection with a coming revival of the apparently-moribund “Right to Know” initiative, the exact nature of which has always been vague and somewhat changeable since the concept (such as it is) first surfaced in 2010.

In any event, it will not be possible to evaluate any claimed legal authority for such a proposed obligation until the U.S. Department of Labor actually publishes something.

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The bottom line

Of course, employers routinely choose for a host of good business reasons – including in the interests of sound employee relations – to maintain predictable schedules and to keep employees advised in advance of what their schedules are, at least where the nature of the work permits this.

But, to assert that an employer may be legally compelled to do so under the FLSA as it stands today is an entirely different and highly doubtful proposition.

Employers should stay on the alert for any such Department of Labor proposal.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.

John Thompson is a partner in the Atlanta office of the law firm Fisher & Phillips. His practice focuses on wage and hour law, assisting employers in preventive efforts designed to ensure compliance, and he handles both investigations conducted by government agencies and litigation in the wage and hour area. John has served as a Special Assistant Attorney General for wage-hour matters for the State of Georgia. Contact him at jthompson@laborlawyers.com.

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2 Comments on “Do Employees Have a Legal “Right” to a “Predictable” Schedule?

  1. The author is obviously an expert on labor law, which I am not. However, I am an expert on the economics of ownership and control rights. The person (or institution) that has residual control rights over a resource is the owner of the resource. A firm that has claim to any hours of a worker’s time they choose to utilize, then, could be thought of as an owner of that worker. I think that this discussion shouldn’t only be rooted in specific labor laws and regulations, but also in the constitution, which I understand prohibits slavery.

  2. Good grief. To suggest that this has anything to do with “slavery” is absurd.

    If the point is that the worker feels “economically coerced” not to resign when he or she concludes that the scheduling conditions are unacceptable, then this drains the term “slavery” of any useful meaning whatsoever and certainly removes it from the realm of the constitution.

    It is questionable what sort of expertise “on the economics of ownership and control rights” could lead to such reasoning.

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