Despite the negative effect it can have on employee relations, an unstable work schedule is an issue in many industries. According to the Women’s Law Center, especially hard-hit are hourly workers in retail sales, food service and the janitorial service/housekeeping industries. One reason for this is that business needs often trump employee needs. Another reason is that with only a few limitations, employers have no legal obligation to provide prior notice before changing a work schedule, regardless of the industry or location.
FLSA and State Labor Laws
The federal Fair Labor Standards Act says that in most cases, an employer can change the work schedule of anyone over 16 years of age without prior notice or consent. The consensus is that scheduling policies are up to each employer to implement and enforce, and every employee has a duty to comply with the schedule given to them.
State labor laws generally follow the FLSA and therefore do not address or limit employee scheduling. For example, Texas labor laws refer to the at-will employment doctrine and say an employer has the option to change an employee's schedule with or without notice.
Exceptions apply in certain situations. However, most exceptions address scheduling changes indirectly. For example, except in cases where employees have a collective bargaining agreement or on FMLA leave, exceptions generally address work schedule changes in terms of how they affect time off and pay.
- An employer must comply with the terms of a collective bargaining agreement if it addresses scheduling.
- An employer can’t change the work schedule of an employee on family and medical leave. According to the Society for Human Resource Management, an employee returning from FMLA leave is entitled to return to “the same shift, or a similar or equivalent work schedule.”
- States that have “show up pay” laws must pay you a minimum amount for lost time if you show up for work, but you’re either sent home immediately or before the end of a scheduled shift. For example, New Hampshire employment laws require that an employer pay you for at least two hours of work at your regular pay rate. As of July 2015, show-up pay laws exist in California, Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island and the District of Columbia.
- An employer must pay the standard overtime rate when scheduling changes result in working overtime. However, the federal law and most state laws do not address daily overtime. The overtime pay rule most often only applies if you work more than 40 hours in a seven-day workweek.
- Some state labor laws address scheduling changes that affect time off. For example, Texas employers in the retail sector must give full-time employees -- those who work at least 30 hours per week -- at least one day off each week.