Philadelphia City Council Passes Fair Workweek Employment Standards Ordinance

December 17, 2018 | By Andrew J. Horowitz

On December 6, 2018, Philadelphia’s City Council passed the Fair Workweek Employment Standards Ordinance.  The bill (bill No. 180649-A) would amend Title 9 of the Philadelphia Code and add a new chapter requiring certain employers to follow certain scheduling standards for certain groups of employees. If signed by the Mayor in its current form, the ordinance will take effect on January 1, 2020.  The proposed ordinance would impose many new requirements on companies who employ workers in Philadelphia.

The proposed ordinance would cover retail, hospitality, and food services establishments with 250 or more employees (including part-time and temporary employees) with 30 or more locations worldwide (including franchise locations). The proposed ordinance requires these employers to provide employees with a written, good faith estimate of the employee’s schedule when hired, and engage in an interactive process regarding the employee’s availability similar to that required for reasonable accommodations under the Americans with Disabilities Act (ADA). It further requires employers to notify employees about work schedule changes at least ten days before the start of any new schedule (increasing to fourteen days after the first year of the ordinance).

Once a work schedule is posted, the employer cannot change the schedule without either 1) the consent of the employee (who is protected from retaliation if he or she declines the change); or 2) paying the employee additional “predictability pay.”

If hours are added to an employee’s schedule, or the schedule is changed with no loss in hours to the employee, the employer must pay one hour of predictability pay. If, however, the employer reduces an employee’s hours, the employer must pay predictability pay at a rate of time and a half for all hours not worked. There are certain exceptions for extenuating circumstances, such as power outages and severe weather, and for when the employee’s schedule is associated with a ticketed event or hotel banquet that is changed due to circumstances outside of the employer’s control. Employees may also decline to work two shifts that are less than nine hours apart, and are entitled to an additional $40 compensation when they consent to work such shifts. Employers are limited in their ability to use an external applicant pool (such as an outside staffing agency) to avoid paying predictability pay to their own employees.

Employers are also prohibited from distributing hours in a manner intended to avoid the application of the Patient Protection and Affordable Care Act.[1]

The proposed ordinance would also require the posting of notices to employees and applicants regarding their rights, and would require employers to keep records to demonstrate their compliance with the ordinance. Finally, any part of the proposed ordinance may be waived in a bona fide collective bargaining agreement.

A number of other jurisdictions have enacted similar laws, including the cities of San Francisco, San Jose, and Emeryville California, Seattle, New York City, and the state of Oregon. A measure has also been introduced in the Pennsylvania Legislature to preempt Philadelphia and other municipalities from enacting this and other protections for employees, such as paid sick leave laws. HR Legalist will continue to track this proposed ordinance and keep our readers updated.

[1] A judge of the United States District Court for the Northern District of Texas recently held that the Affordable Care Act is unconstitutional. See United States v. Texas, 4:18-cv-00167-O (Dec. 14, 2018). The decision is expected to be appealed, and legal experts do not expect this decision to be upheld on appeal. For now, the Act remains in place, as does this provision of the ordinance.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.