The Gittes Law Group

Columbus, Ohio Employment Attorneys

723 Oak Street
Columbus, OH 43205
Fax: (614) 221-9655

(614) 222-4735

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?

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.

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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.

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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.

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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.”

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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. 

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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.

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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.

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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).”

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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.”

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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.

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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.

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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.

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