Proposed Massachusetts Law to Restrict Scheduling Flexibility

March 11, 2015

Currently pending before the Massachusetts Legislature is a bill, proposed by Representative Sean Garballey, that would significantly curtail employers’ scheduling flexibility. The bill would eliminate the “clopening” shift, where an employee closes one day then opens the next, by requiring that employers give employees at least 11 hours off between shifts. Thus, if an employee worked until 11:00 p.m. closing one night, she could not come in the next morning until 10:00 a.m. without running afoul of the proposed law. The penalty for calling an employee in less than 11 hours after the end of her last shift is that this time would have to be paid at the overtime rate of time-and-a-half.

While this does not appear terribly onerous on its face, it does create a trap for the unwary employer, and current payroll systems may not be equipped to easily deal with this issue. You can imagine a situation where an employee is scheduled for shifts starting 11 hours apart, but in fact is held over by a half-hour or more on the closing shift. A failure to catch this issue and pay for the time would likely result in a wage violation, and if those violations occur with some frequency, the class-action plaintiffs’ lawyers will soon be knocking on the employer’s door.

The likely more onerous requirement in the proposed legislation is the requirement that schedules be written three weeks in advance. Once the schedule is written, the employer is placed at its employees’ mercy. If a change to the written schedule is made, the employer must receive written consent from the affected employee. The employer is forbidden from penalizing an employee for refusing to consent to the scheduling change. Under such a law, it is easy to imagine a situation where an employee with an undesirable shift quits, and the employer is left without anyone willing to take the shift until a new schedule is put in place three weeks later.

Finally, if an employer calls an employee in to work or cancels a shift outside of this fixed 21-day schedule, the employer is required to pay the employee for four hours of work, or the number of hours for which the employee was originally scheduled to work, whatever is less.

While there is a potential upside to this proposed legislation for employees, if passed it will dramatically cut into the scheduling freedom that Massachusetts employers currently enjoy. These restrictions will be most harsh during the times when that freedom is most necessary, such as following hiring or firing, or during a winter storm or other emergency situation. Smaller employers with a more limited staff and those with already tight margins should feel the greatest squeeze from this law if passed.

The only upside here is that, as of today, the bill is still a long way from becoming the law of the land. According to a recent article, there is no current timetable for enacting this legislation in Massachusetts.

It is often a fact of life in the service industry that schedules change, and sometimes employees are asked to work another shift shortly after their last shift ended. Changing schedules are necessitated in large part by customer demands. If a major snowstorm is forecast for tomorrow, it’s a safe bet that your restaurant will serve fewer guests than you predicted when you initially drew up the schedule. In turn, you will not need as many servers on staff that day, and you want the flexibility to lower your labor costs to reflect the lower-than-expected revenue.

The practice of “clopening” also occurs in the service industry with some regularity. It may be at the request of an employee who wants to have a night off or start her days off early. It may be the result of an employer’s need to fill a shift for which it only has a few employees available.

Whatever the reason, employers in general, and those in the service industry in particular, have a certain amount of freedom in creating and altering their employees’ schedules in order to meet the ever-changing needs of the business. If this bill becomes law, however, these freedoms may be significantly curtailed.