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City of philadelphia
A report and final regulations are expected by late December This Insight article provides an update on the Ordinance and proposed regulations, and what might change with final regulations. Covered Employer is defined in the Ordinance as an employer that is a retail, hospitality or food services establishment under specified NAICS codes that employs or more employees including part-time and temporary workers anywhere and has 30 or more locations worldwide.
Court of Appeals for the Third Circuit, which encompasses Philadelphia, has interpreted the federal t-employer regulations in the context of a parent-subsidiary relationship and held that t employment turns on the degree of control that the putative t employer has or exercises over the essential terms and conditions of employment, determined by a multi-factor test. Covered Employees include all non-exempt full-time, part-time, seasonal and temporary employees who provide retail trade services, food services or hospitality services at a Covered Employer in Philadelphia.
The Ordinance applies only to employees and not to independent contractors; however, the employer bears the burden of proof that an individual is an independent contractor under applicable law. The good faith estimate must be a fact-based prediction based on forecasts, prior hours worked by similar employees, or other information, but it is not a binding contractual offer.
The good faith estimate must specify: 1 the average of work hours the employee can expect to work each week over a typical day period or a term-limited seasonal period with a clear end date; 2 whether the employee can expect to work any on-call shifts; and 3 a subset of days and times or shifts that the employee can typically expect to work or not work, the total of which cannot exceed 1.
The Ordinance provides employees with the right to make work schedule requests without fear of retaliation, including requests: 1 not to be scheduled for work shifts during certain days or times or at certain locations; 2 not to work on-call shifts; 3 for certain hours, days or locations; or 4 to work more or fewer hours.
On or before the commencement of employment, a Covered Employer must provide the employee with a written work schedule that runs through the last date of the currently posted schedules. The employee will be able to see his schedule for the week of April May 2 when the schedule for the employees at his worksite is posted by Thursday, April Written refers to communication by print or electronic means, includingtext, dating Philadelphia Pa workers of scheduling applications or other form of communication that can be saved in original format.
As promptly as possible and before the change takes effect, the employer must provide notice of any employer-initiated change to the work schedule that occurs after the required advance notice. Employees may decline to work hours or additional shifts not included in the posted work schedule.
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For each employer-initiated change to the posted work schedule that occurs after the required advance notice, the employer must pay predictability pay as follows:. The regular rate of pay is defined the same as under the Pennsylvania Minimum Wage Act regulations.
Proposed Regulation 7. As drafted, it would cover back-to-back shifts in the same workday.
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At the time of hire and within 24 hours of any changeemployers must provide written notice of, and post conspicuously, their policy for offering and distributing available work hours or shifts. Before hiring new employees from an external applicant pool or through a contractor, notice of the available work hours must be given to all existing employees regardless of their position or the of hours they have been scheduled in prior weeksand the hours first must be offered to any existing employee s who are qualified to perform the work.
The employer must distribute shifts per the criteria in the notice of available hours to employees who express interest in the available hours and who, based on a good faith determination, are qualified to perform the work. There is no obligation to offer hours to an existing employee if doing so would result in that employee working overtime.
The employer can hire a new employee directly or through a subcontractor, temporary service or staffing agency only if: a no qualified employee s accepts the offer of available work hours within 24 hours of the end of the hour posting period; or b the employer receives written confirmation from eligible employees that they are not interested in accepting the available work hours; or c existing qualified employees have accepted only a subset of the available hours.
The Ordinance prohibits interference with, or retaliation for, exercising rights under the Ordinance.
If they exercise rights under the Ordinance, and their employment ends less than 90 days later, there will be a rebuttable presumption of retaliation if they are not rehired to work in the same position at the next opportunity for work. The Ordinance also mandates that employers maintain records for two years that show compliance with the Ordinance, including good faith estimates of work schedules, modifications thereto, written consent to work shifts, offers of shifts to existing employees and responses to those offers, as well as payroll records showing predictability pay.
The Ordinance creates a private right of action for those aggrieved by violations of the Ordinance, and does not require exhaustion of administrative remedies. The Philadelphia Ordinance is complex and imposes more obligations on employers than predicable scheduling ordinances in other jurisdictions. Once the final regulations are issued later this month, covered employers should finalize applicable policies, forms and processes and train staff well before the April 1, compliance deadline. These exemptions are discussed in more detail in the next section of this Insight.
Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. Subscribe RSS Updates.
Littler Mendelson P. Insight In-Depth Discussion. Coverage Covered Employer and Co-Employers Covered Employer is defined in the Ordinance as an employer that is a retail, hospitality or food services establishment under specified NAICS codes that employs or more employees including part-time and temporary workers anywhere and has 30 or more locations worldwide.
Covered Employees: Non-Exempt Workers Providing Retail, Food or Hospitality Services Covered Employees include all non-exempt full-time, part-time, seasonal and temporary employees who provide retail trade services, food services or hospitality services at a Covered Employer in Philadelphia.
A change is made to the posted work schedule within 24 hours of the required advance notice 10 days before the first day of the new schedule and 14 days as of January 1, This might be clarified in the final regulations. An employee begins or ends work no more than 20 minutes before or after the scheduled start or end time of the shift. Safety Threat.
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Hours are reduced due to a documented multi-day disciplinary suspension or termination. Hotel Banquet Department Event. Offer of Work to Existing Employees Before Hiring New Workers Providing Notice of and Distributing Available Hours At the time of hire and within 24 hours of any changeemployers must provide written notice of, and post conspicuously, their policy for offering and distributing available work hours or shifts.
Anti-Retaliation Provision and Presumption of Retaliation The Ordinance prohibits interference with, or retaliation for, exercising rights under the Ordinance. Recordkeeping and Posting Requirements The Ordinance also mandates that employers maintain records for two years that show compliance with the Ordinance, including good faith estimates of work schedules, modifications thereto, written consent to work shifts, offers of shifts to existing employees and responses to those offers, as well as payroll records showing predictability pay.
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