Rescheduling Workers: What Are Your Rights?

While there are no federal or state laws regulating how far in advance employers must provide their employees' schedules, certain laws and regulations can influence an employer's ability to reschedule an employee. For example, the Fair Labor Standards Act (FLSA) and local predictive scheduling laws can impact an employer's scheduling decisions. Additionally, factors such as industry limitations, FMLA leave, and overtime laws may also come into play. Ultimately, the specifics of each situation, including the state and industry, will determine the legality of an employer's actions regarding rescheduling.

Predictive scheduling laws

While there are no federal or state laws regulating how far in advance employers must give their employees their schedules, predictive scheduling laws—also known as 'Fair Workweek' laws—are becoming increasingly common across the United States. These laws require employers to give their employees sufficient notice of schedule changes, helping them to plan their schedules and budgets. They also enforce penalties for late schedule changes.

The requirements of predictive scheduling laws vary between states and localities, and they apply specifically to retail and fast-food companies of a certain size, usually including part-time and seasonal employees. For example, in New York City, employers must give their employees at least 72 hours' notice of any schedule changes, while in Oregon, this increases to 14 days. In San Francisco, if an employee's schedule is changed with less than seven days' notice, the employer must increase the employee's regular rate of pay for the rescheduled shifts. In Emeryville, the law requires employers to give a “good faith estimate" of an employee's work schedule, at least 14 days in advance.

While Oregon is the only state to enforce state-wide work schedule laws, several other states have local ordinances, applying to major cities like New York City, Los Angeles, and Chicago. Some states have banned these laws, while others may soon expand them. Certain industries, such as healthcare, also have limitations that prohibit employers from making certain changes to employee schedules. For example, practitioners like doctors or nurses can only legally work a certain number of hours, and employers cannot schedule them for additional shifts.

In the absence of predictive scheduling laws in some states, employers have the right to change their employees' schedules whenever they want to, including at the last minute. However, if an employee has an employment contract or collective bargaining agreement in place that explicitly states the employer cannot make changes to their schedule, then the employer must abide by this agreement.

Employment contracts

In the United States, there are no minimum requirements for an employment contract, and no federal provisions govern fixed or unlimited-term contracts. In most states, no written memorialisation of any terms is required, and employment is presumed to be "at-will", meaning it is terminable by either party, with or without cause or notice.

However, this does not mean that employers can act without constraint. Firstly, federal and state laws govern what an employer can do during the hiring process. This includes a duty to avoid illegal discrimination, follow rules related to hiring immigrants, follow child labour laws, refrain from making promises they cannot keep, and respect the privacy rights of the employee. Important federal anti-discrimination laws include the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, the Immigration Reform and Control Act of 1986, and the Americans with Disabilities Act of 1990.

Secondly, while there are no federal or state laws regulating how far in advance an employer must give an employee their schedule, there are predictive scheduling laws in some states. For example, in New York City, employers must give at least 72 hours' notice of schedule changes, and in Oregon, this increases to 14 days. In San Francisco, less than seven days' notice requires an increase in the employee's regular rate of pay for the rescheduled shifts.

Thirdly, while employers can generally change an employee's schedule, there are exceptions. For example, if an employee is on leave under the Family and Medical Leave Act (FMLA), the employer must provide the same working conditions upon their return. Also, part-time or non-exempt full-time workers are subject to overtime laws, and employers cannot add extra hours without adequate compensation.

Finally, while written employment contracts are not required, they are often used for high-level or professional positions. These contracts specify the basic terms and conditions of employment, such as position, job responsibilities, salary, compensation, incentive pay, and stock options. They may also define what constitutes grounds for termination and provide for severance pay in the event of termination without cause.

Overtime laws

While there are no federal or state laws regulating how far in advance employers must provide their employees' schedules, there are laws regarding overtime pay. These laws are contained in the Fair Labor Standards Act (FLSA), which was enacted in 1938 as part of President Franklin D. Roosevelt's New Deal. The FLSA establishes minimum wage, overtime pay, record-keeping, and youth employment standards for workers in the private sector and government positions.

According to the FLSA, unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. This means that for every hour worked beyond 40 hours in a week, employees should be compensated at 1.5 times their regular rate. It is important to note that the FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days. Additionally, there is no limit in the Act on the number of hours employees aged 16 and older may work in any given workweek.

Exemptions to the FLSA's overtime requirements include certain businesses, such as amusement parks, agricultural employers, and camps, depending on their business operations. Furthermore, specific professions, such as doctors, lawyers, teachers, and nurses, are commonly exempt from overtime rules due to the advanced training required for these jobs.

It is worth noting that while the FLSA provides federal guidelines, there may be additional state-specific regulations and laws governing overtime pay, such as in Tennessee, where workers are entitled to overtime pay if they work more than 40 hours per week, with a few specific exceptions.

To ensure compliance with applicable laws, employers must post a notice explaining the FLSA in a conspicuous place in all their establishments. Additionally, employees who believe they are not receiving their rightful overtime pay can seek legal assistance to evaluate their circumstances and determine if they are being shortchanged.

Whistleblower laws

In most cases, federal employment laws allow employers to change an employee's schedule. However, there are exceptions, such as when an employee is on Family and Medical Leave, which guarantees the same working conditions upon their return. Additionally, certain industries, like healthcare, have limitations on the number of hours practitioners can work. While there are no federal or state laws mandating the required advance notice for schedule changes, some states and cities have implemented predictive scheduling laws, such as New York City, which requires 72 hours' notice, Oregon, which requires 14 days, and San Francisco, which mandates additional pay for shifts rescheduled with less than seven days' notice.

Now, onto the topic of whistleblower laws:

The Office of Federal Contract Compliance Programs (OFCCP) is another entity that protects workers and enforces anti-discrimination laws for federal contractors and subcontractors, prohibiting discrimination based on race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or veteran status. Similarly, the Wage and Hour Division (WHD) promotes compliance with labor standards to protect the nation's workforce.

Additionally, the Whistleblower Protection Act (WPA) safeguards employees who make protected disclosures from reprisal, and the Military Whistleblower Protection Act (MWPA) extends these protections to members of the armed forces. The Whistleblower Protection Enhancement Act of 2012 reinforces these rights and ensures they are not superseded by non-disclosure agreements or policies.

Employees in the Intelligence Community, including FBI employees and contractors, intending to disclose classified information, should refer to the Inspector General Act, which outlines a detailed process for such disclosures. Furthermore, the Department of Justice (DOJ) employees, contractors, and subcontractors are protected from retaliation when reporting wrongdoing to the OIG Hotline or the U.S. Office of Special Counsel (OSC).

State laws

Additionally, state and local scheduling laws may affect overtime compensation calculations under the Fair Labor Standards Act (FLSA). While the FLSA provides a list of payments that can be excluded from the regular rate of pay when calculating overtime compensation, certain conditions must be met for local or state scheduling penalty payments to be excluded from the regular rate.

In terms of immigrant and non-immigrant visa appointments, rescheduling policies also differ between states. For non-immigrant visas, applicants can generally reschedule their appointments up to four times without penalties, excluding the initial appointment. For immigrant visas, rescheduling before the initially scheduled date is typically not permitted, but exceptions may be made for compelling circumstances such as medical emergencies or unavoidable travel conflicts.

Frequently asked questions