Secure Scheduling Rules 02/16/17

 Secure Scheduling Rules 02/16/17

Issue / Question / Stakeholder/OLS Comments / Draft Proposal
Undecided topic
Undecided language
Definitions – SMC 14.22.010
Bona Fide Business Reason

• In general

/ Rule –
In general. "Bona fide business reason" means:
1.An action that would cause the employer to violate a law, statute, ordinance, code and/or governmental executive order; or
2.A significant and identifiable burden of additional costs to the employer; or
3.A significant and identifiable detrimental effect on the employer's ability to meet organizational demands, including:
a.A significant inability of the employer, despite best efforts, to reorganize work among existing employees;
b.A significant detrimental effect on business performance;
c.A significant inability to meet customer needs or demands; or
d.A significant insufficiency of work during the periods the employee proposes to work. SMC 14.22.010.

• Significant and identifiable burden of additional costs to the employer

/ What does “significant” mean? / Compare to undue burden under the ADA / Costs.“Significant and identifiable burden of additional costs to the employer” means a material and measurably large burden of additional cost when considering the following factors:

1. the nature and cost of the scheduling change requested by the employee;
2. the overall financial resources of the location or locations providing the scheduling adjustment; the number of persons employed at such location or locations;
3. the effect on expenses and resources,
4. the overall financial resources of the covered employer; the overall size of the business of a covered employer with respect to the number of its employees;
5. the number, type, and location of its facilities;
6. the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; and
7. the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

• Premium Pay

/ Does employer have bona fide business reason to deny:
Employee request to work closing and opening shifts separated by less than 10 hours / Significant concern about government rule requiring overtime for new situation.

• General agreement that denying a shift that incurs additional pay should be a bona fide business reason.

Is there a lower bar for particular situations, such as schedule requests that result in requirement to pay premium pay (e.g. overtime, holiday pay, 1.5x scheduled rate of pay for closing/opening shifts with less than 10 hours of rest period) AND a higher bar for other situations (i.e. undue burden standard under the ADA) such as schedule requests to work on certain days for major life event. / Rule –
Premium pay.A schedule change that will result in a requirement to pay a higher wage under the Minimum Wage Act, RCW 49.46, et. seq., Fair Labor Standards Act, 29 U.S.C. § 201, et. seq., SMC 14.22, or the employer’s own policy (e.g. holiday pay) constitutes a bona fide business reason.

• Seniority systemforrepresented employees

/ Does a conflict with a seniority system for represented employees meet the standard of bona fide business reason? / Supreme Court has held that an accommodation is not “reasonable” if it interferes with a CBA’s valid seniority system.
Bona fide business reason if there is a significant and identifiable detrimental effect on the employer’s ability to meet organizational demands. / Rule –
Seniority systemforrepresented employees. The employer’s practice of providing a work schedule consistent with a seniority system in a written policy and/or a bona fide collective bargaining agreement constitutes a bona fide business reason.

• Seniority system for non-represented employees

/ Does a conflict with a senior system for non-represented employees meet the standard of bona fide business reason?
Does it make a difference if the employer has a written policy that establishes a seniority system? / Not a bona fide business reason for non-represented employees.
Bona fide business reason if employer has legitimate, written policy (e.g. handbook) that honors security.
Bona fide business reason if employer has regular practice that honors seniority.
Bona fide business reason if there is a significant and identifiable detrimental effect on the employer’s ability to meet organizational demands. / Rule –
Seniority system for non-represented employees.The employer’s practice of providing a work schedule in accordance with a seniority system in a written policy and/or a bona fide collective bargaining agreement constitutes a bona fide business reason.

• Examples

/ Can rules or Q&As provide a list of examples of bona fide business reasons? / Q&A – To be determined.
Franchise / Does state law definition of franchise apply (RCW 19.100.010)? / Support for applying state law.
OLS is researching topic. / Q&A – See MWO Q&A.
Interactive process

• Method of communication

/ Does the interactive process have to happen face-to-face? Can it occur in an exchange of writing?
Also, what is the interactive process? How does the interactive process in this ordinance compare to interactive process required for disability accommodations and religious accommodations? / Can employer state and established the method of communication at time of hire when providing the good faith estimate?
Method of communication should be at employer’s discretion because employers are penalized for non-compliance.
Workers voiced concern that communications be provided in other languages as well.
Employers urged caution in requiring employers to communicate in other languages beyond templates or form documents.
OLS will provide translations for documents describing employees’ rights and changes to those rights.
What will OLS’ translations include?Will OLS include template where employer can just fill in hours that are changing?
How do we ensure an interactive process where employer states that hours will change?
Will employee know that they can push back and ask for change? / Rule – See interactive process in Good faith estimate and Right to request.
Major life event

• Major

/ What is major? Does it matter if it is long-term, short-term with or without advance notice?

• Long-term event = syllabus lists all classes and tests or hours of child’s daycare?
• Short-term event = pop quiz or short notice of parent/teacher conference.

/ “Significant” standard in bona fide business reason is a high threshold, but “major” is a low threshold. There should be more parity.
The term, major, was used to encompass the range of events that can occur with particular life events (caregiving, transportation, housing, career-related education, other jobs) that incur major responsibility (e.g. childcare, caregiving for family member with serious health condition) or result in major change (e.g. loss of housing).
For caregiving responsibilities, the employee should know about parent/teacher conference ahead of time as they are usually scheduled out.
But a serious student disciplinary issue that comes up on short notice should qualify as major life event. Plus, parent/teacher conferences are frequently rescheduled.
Is there a point at which repetition negates major life event? e.g. repeated suspension issue?
No, Repeated events can be evidence of a major life event.
For sexual harassment, the prima facie case uses a reasonable person standard used to determine whether the conduct was severe or pervasive. It is reasonable person standard, but not in a vacuum. /

1. Rule –
2. Major life event. A major life event includes foreseeable and unforeseeable events that the employee reasonably believes:
3. are important, serious, or significant;
4. relate to the employee's transportation or housing; the employee's own serious health condition; the employee's responsibilities as a caregiver; the employee's enrollment in a career-related educational or training program; or the employee's other job or jobs;and
5. impact the employee’s access to the workplace on a long-term, short-term, or on-going basis.

• Transportation & housing

/ What are examples? / Q&A – To be determined.

• Serious health condition

/ Is it the same as FMLA or lower standard?
(SS) Serious health condition = an illness, injury, impairment, or physical or mental condition that involves:

1. 1. Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity; or
2. 2. Continuing treatment by a health care provider.

/ SS definition has language that identifies serious health conditionas a lower standard than FMLA definition
(FMLA) "Serious health condition" = illness, injury, impairment, or physical or mental condition that involves:

• any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
• any period of incapacity due to pregnancy, or for prenatal care; or
• any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
• any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

/ Q&A – SS is a lower standard than FMLA.

• Responsibilities as a caregiver

/ What are examples? / Childcare on an on-going basis
Conferences with teacher or childcare provider
Not chaperoning a school field trip / Q&A – To be determined.

• Education

/ What events are covered in a career-related education or training program? / We should not allow employers to make qualitative judgments on whether certain courses or classes are legitimate.
Courses must be related to some career, that is different than their current job.
Career-related can apply to any career, whether it is related to current job or different job. / Rule -
Career-related education or training program. A career-related education and training program includes programs that advance a chosen pursuit, profession or occupation in the same or different line of work for the same or different employer.

• Career related

/ Can a pottery class be a career related program if employee is contemplating selling pottery during a future, unspecified time period? / See above. / Q&A – Employee’s reasonable belief.

• Other job(s)

/ What constitutes a job?
For example, would casual babysitting be covered as a job even though it is not covered by the minimum wage ordinance?
Would an Uber driver count as other job?
Would employee’s own business count as other job? / Any work that is covered by the WT ordinance.
Does “job” include an employee’s separate business (e.g. independent contractor job, Uber driver).
Should only include work that is covered by the MW ordinance, or in the alternative, work that requires a W-2.
Should include any work that is covered by the WT ordinance.
(dictionary) Job = paid position of employment
(SS) Employ = suffer or permit to work
(SS) "Employee" means any individual employed by the employer. / Rule -Employee’s other jobor jobs. Job means employment by the same or different employer.
Family relationship

• Blood or affinity

/ Can employer ask for verification of family relationship? / This is far reaching; documentation seems as an invasion of privacy.
Employers should have ability to verify relationships.
Discussion of an affidavit that does not require employee to list the nature of the family relationship (e.g. spouse). / Rule – See below for verifying information.

• Spouse

/ Does spouse apply to non-marital relationships (e.g. boyfriend, girlfriend, partner)?
“Any individual related to the employee involved by blood or affinity, whose close association with the employee is the equivalent of a family relationship as described in subsection 1 of this definition.”
"Spouse" means husband, wife, or domestic partner. For purposes of this Chapter 14.22 the terms spouse, marriage, marital, husband, wife, and family shall be interpreted as applying equally to city or state registered domestic partnerships or individuals in city or state registered domestic partnerships as well as to marital relationships and married persons to the extent that such interpretation does not conflict with federal law. / In the definition spouse is limiting because on one end talks about marriage and domestic partnerships, which are legal entities. On the other hand, the definition defines family and talks about blood and similar relationships. Want to make it clear in ordinance these are connected.
“the equivalent of a family relationship” is subjective but is not meant to cover casual dating or boyfriend, girlfriend, partner situations that are not the equivalent of a spouse relationship.
Agreement that the blood or affinity reference in ordinance also ties back to definition of spouse.
Proposal to also make this interpretation explicit in rules. / Rule –
In general. Family relationship means a relationship with any individual related to the employee by blood or affinity, whose close association with the employee is the equivalent of a child, spouse, parent, grandchild, grandparent, sibling, or parent of a spouse of the employee.
Spouse.Spouse means husband, wife, or domestic partner. The termsspouse, marriage, marital, husband, wife, and family shall be interpreted as applying equally to city or state registered domestic partnerships or individuals in city or state registered domestic partnerships as well as to marital relationships and married persons. SMC 14.22.010.
Non-marital relationships. Spouse means an individual in a non-marital relationship with the employee whose close association with the employee is the equivalent of a spouse.
Employee coverage – SMC 14.22.015
Fixed, point of sale

• Definition of “fixed point of sale”

/ Does the fixed point of sale include areas open and closed to the public (e.g. display area and stocking area). If it includes areas closed to the public, does it include offices (e.g. receptionist for company, bookkeeper, HR person)? / Fixed point of sale is intended to apply to the establishment’s location. It becomes complicated when admin offices and store front are in same building).
Should be a distinction not open to the public for sale. Therefore, not covered. / Rule –
Fixed, point of sale location. The fixed, point of sale location refers to the entirety of such location, including areas open and closed to the public.

• Work at fixed point of sale location

/ Does work at the fixed point of sale location include employees who contribute to sales and/or the chain of service even though they are not seen by the public (e.g. stockers)? If so, how is the chain of service defined? Is the hourly bookkeeper who works upstairs in office above the sales area a covered employee? / Intention for ordinance to cover work by employees who are interacting directly with public (e.g. sales, servers, cashiers) and those are working in areas that are not open to the public but doing work that supports sales and/or directly contributes to the chain of service (e.g. stockers, kitchen). / Rule – see below for employee coverage.

• Fixed / mobile food truck

/ A mobile food truck is covered by the ordinance by NAICS code, but is it truly a fixed point of sale? / Yes, it is a fixed point of sale. / Q&A - Yes, a mobile truck is a fixed point of sale.

• Fixed point of sale for web-based delivery company

/ What is the fixed point of sale for a delivery company that takes the order for a covered food services or retail employer and then dispatches driver to the brick & mortar location? When (if ever) is an employee of the web-based delivery company covered by the SS ordinance? / Focus on whether there is a joint employer relationship and on the primary location of employee.
If employee is jointly employed by the food services establishment and the delivery company, then the employee is covered if the employee works at least 50% of time in the fixed point of sale location. / Q&A-

• “provision of such employment services”
• Employees who intermittently work in an employer’s retail location

/ Does the ordinance apply to employee who usually works in the employer’s warehouse or manufacturing facility and who is unloading goods or stocking shelves at the retail store?
What about sales and HR employees who work at same location. What about stockers who are not seen by public? / Overly complicated if employee primarily works at the warehouse and is only stocking shelves in the store for an hour a day.
Limit to employees who contribute to the chain of service for the sale?
If employee works at least 50% of time in the fixed point of sale location of a covered employer they will be covered by that employer. Focus on primary location of employee. / Rule - See below for employee coverage.
Employment services in Seattle

• Determining employee coverage

“Work at a fixed, point of sale location of a covered employer; and
Provide such employment services in a physical location that is within the geographic boundaries of the City at least 50 percent of the time.” / What time-period does employer use to determine whether 50% of such employee’s services are performed in Seattle?
Is it a previous or prospective time period? / One year.
See FCE Rules & MWO rule revisions. / Rule –
Employee coverage. An employee is covered by the ordinance if the employee works, or if the employer reasonably expects the employee to work, in Seattle at least 50% of the time at the employer’s fixed point of sale location(s), or outside the fixed point of sale location, but in direct service of completing the sales generated at the fixed point of sale location(s) (e.g. delivery driver, catering banquet servers). The employee’s work in Seattle is measured over the course of a year or for the period of temporary or seasonal employment.
**Additional information for rule or Q&A***
For existing employees continuing in the same position, employee coverage is based on the employee’s actual work in Seattle over the course of the previous year or the most recent period of temporary or seasonal employment.
If the employee has not worked for the employer for a year, employee coverage is based on the experience of the employee(s) who previously worked in the employee’s position over the course of the previous year or the most recent period of temporary or seasonal employment.
If the employee’s position is partially or substantially new, employee coverage is based on the employer’s reasonable expectation of the employee’s work in Seattle over the course of a year or period of temporary or seasonal employment.