Kathy Speaker MacNett, Esq.

August 2019

This EALERT usually skips proposals and focuses only on laws/ordinances, which have already been enacted. Today, instead we describe a mix of enactments and proposals, including: an Ordinance passed by the City of Philadelphia, which becomes effective with the New Year; a bill recently introduced into the Pennsylvania Senate to provide paid family leave through employee contributions; and an opportunity for employers to suggest changes in FMLA administration and forms.  The three areas discussed deal with one recurring theme – our society’s attempts to resolve work/life balance issues—a theme, which is expected to generate increased legislative activity in the years to come. 

1.  Philadelphia Predictive Scheduling Ordinance Effective January 1, 2020

The first topic, Philadelphia’s “Fair Workweek Employment Standards Ordinance,” was enacted at the end of 2018 with a New Year’s Day 2020 effective date.  This Ordinance falls into a category of restrictions called “Predictive Scheduling.”  The Ordinance’s attempts to eliminate the problems working parents/grandparents face when schedule changes conflict with daycare arrangements and other planned life events.  The 14-page Ordinance is extremely detailed and nuanced.  As a result, we provide only highlights, but caution that compliant administration of this Ordinance may cause stress due to the need for detailed recordkeeping.

In short, under the Ordinance, Philadelphia employers in selected industries with more than 250 employees (measured by persons, not full-time equivalents) and 30 or more locations worldwide will be required to provide and post written  notice of a “good faith work schedule” first at the time of hire, and again 10 days (increasing to 14 days’ notice in 2021) before a new schedule becomes effective.  Selected industries include hospitality, retail, and food.  The Ordinance applies to an employee in one of the selected industries, who earns less than $26.00 hourly.

An employer violating the Ordinance is responsible for paying “Predictability Pay.” Predictability Pay, is required in addition to pay for hours actually worked, if changes are made by the employer to the employee’s written, posted work schedule with less than the required notice.  Predictability Pay is based on the employee’s regular rate of pay.  Time added to a schedule or a change in time, location or dates with no loss of hours triggers one hour of Predictability Pay.  Predictability Pay at ½ the employee’s regular rate is triggered, if hours are subtracted from a regular or on-call shifts or if one of those shifts is cancelled, unless the change is employee-initiated through a shift change with another employer; the employee’s use of leave time; or exceptional certain threats or shutdowns, e.g. fires, natural disasters, states of emergency or severe weather.

To provide continuity of shifts, the Ordinance prohibits a covered employer from hiring new employees, subcontractors or temporary employees until notice if given to existing employees.  Remedies for violation of the Ordinance, including discrimination for use of the new rights, and a presumption that adverse action against employee within 90 days of exercise of these rights, include predictability pay and other damages developed by regulation, as well as fines and equitable relief.  For more details, CLICK HERE.  

So far, Philadelphia is the only location in Pennsylvania believed to have adopted such an Ordinance, but the discussion of Predictive Scheduling is frequent in Human Resource circles, and more legislative activity on Predictive Scheduling is anticipated.

2.  Proposed Paid FMLA Leave for Pennsylvania Employees

One of the detriments to the use of federal FMLA leave by employees is the unpaid nature of the leave.  SB 580 (Laughlin R- Erie), providing some payment during such leave, has been introduced and referred to the Pennsylvania Senate's Labor and Industry Committee for consideration.  The bill, in its current form, would allow covered employees, military service members, and some self-employed individuals, who elect coverage, to receive benefits during FMLA leave and military qualifying exigencies.  Payment under this proposal would run concurrently with FMLA leave.

Initially, individuals would have to have worked at least 18 weeks and earned at least $2,718 during the 12 months prior to the claim in order to obtain benefits.  That qualifying financial figure would increase annually.  Weekly benefit limitations would be based upon the statewide average weekly wage (the mechanism determining both unemployment and worker’s compensation maximums).  Duration of benefit payments in one year would be either 12 or 20 weeks, dependent upon the reason for the leave.

The bill would also establish a Pennsylvania FMLA Insurance Fund administered by the Pennsylvania Department of Labor and Industry. The individuals would contribute through payroll contributions of .588% of the individual’s wages.

The law would take 2 years following enactment to implement in order to build up the necessary insurance fund. An administrative appeal mechanism within the Department of Labor and Industry would administer individual claims and the related Insurance Fund.

For the text of the bill, CLICK HERE.  

3.  An Opportunity to Comment on FMLA Data Collection and Forms

The third topic presents an opportunity for employers to comment. The U. S. Department of Labor (“DOL”) has recently opened a window for public comments before revising its Family Medical Leave Act (“FMLA”) data collection requirements and forms.  Employers should consider comments to DOL to make the data collection requirements under the FMLA more practical, enhance both the quality and clarity of the information, and evaluate the DOL’s estimates of the burden of collection in order to minimize that burden.  DOL will also accept suggestions on its FMLA forms to make these more user-friendly.  Interested persons can file comments electronically at Don’t delay.  This limited time offer expires on October 4, 2019.   For more info, CLICK HERE.  

Bottom Line:  Issues of work/life balance are expected to increase in the years to come, so it becomes increasingly important to examine proposals carefully and determine whether the proposals can be implemented without undue disruption of business operations.