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Georgia Laws Endorse ‘On Call Scheduling’ Practice and Provide Limited Paid Sick Leave Protections

Georgia Governor Nathan Deal has signed into law a measure preempting any local wage laws or requirements that employers compensate employees for changes related to employee schedules. Act 221 (H.B. 243) continues Georgia’s tradition of promoting an employer-friendly environment, particularly for retail businesses and restaurants.

A second measure, Act 203 (S.B. 201), signed by the governor states that if an employer elects to provide its employees with paid sick leave, the employer must permit employees to use up to five days of the sick leave for the care of family members.

Both laws become effective on July 1, 2017.

On Call Scheduling

The new law protects businesses that want to use the practice of “on call” or “predictive” scheduling by barring local governments from requiring additional pay for scheduling changes. The effect of this is to protect the practice of “on call” and “predictive” scheduling.

Act 221 is Georgia’s most recent attempt to draw to the state businesses looking for a break from more restrictive state and local wage laws in other jurisdictions. Existing Georgia law bars cities and counties from adopting minimum wage rates higher than the federal minimum wage, currently $7.25 an hour, or requiring overtime pay not required by federal law. Existing Georgia law also bars any local government entity from requiring employers to offer employee benefits (including health insurance).

“On call scheduling” practices keep employees “on call.” Employers would inform employees, sometimes just hours before the scheduled work time, whether they must report to work. “Predictive scheduling” mandates usually include “predictive pay” provisions, which obligate employers to pay employees for shift changes and cancelled shifts. They also require payment to employees who were “on-call,” but not called into work on a given day.

These practices are common in the retail and restaurant industries. They allow employers the flexibility to adjust their staffing levels with short notice based on customer demand. Both are good examples of companies taking advantage of predictive modeling and analytic technology to forecast customer demand in real time to save labor costs.

They are controversial, however, because employees must keep themselves available to work, but are not paid for the shifts they ultimately are not required to work, with little notice. Employees may be forced to make last-minute adjustments in child care and transportation and may be kept from taking other work. In 2016, many state attorneys general began looking into the practice, resulting in a December 2016 agreement adopted by 21 national retailers agreeing not to use the practice of “on call scheduling” in those states. Those states include California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New York, Rhode Island, and Washington, D.C. In addition, the cities of San Francisco and Seattle adopted laws requiring employers to pay employees when their shifts were changed or cancelled without sufficient notice.

With the new law, Governor Deal and the state legislature are ensuring that such laws are not planted in the Peach State. The law is a clear effort by Georgia to differentiate itself from other states that penalized or banned these practices, which are becoming more common in retail and restaurant settings.

Sick Leave

The new law requires employers that elect to offer paid sick leave to their employees to permit eligible employees to use up to five days of paid leave each year to care for immediate family members.

Act 203, however, has limited application. It does not apply:

  • to employees working less than 30 hours per week; or
  • to employers with fewer than 25 employees.

Significantly, Act 203 does not require employers to adopt any paid leave policies at all or to pay out unused paid leave time upon separation (continuing a “use-it-or-lose-it” approach). It also does not provide a private cause of action against employers that do not comply with the law.

Georgia employers with paid leave policies should adjust them accordingly. These and similar paid leave law measures are being adopted by other states feeling competitive pressure to provide protected paid leave to employees.

 

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 132

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About this Author

Emily Borna, Jackson Lewis, business compliance attorney, human resource lawyer
Principal

Emily S. Borna is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. Since completing law school, she has specialized in labor and employment litigation on behalf of management.

Ms. Borna joined Jackson Lewis after a year of private practice in Savannah, Georgia. She specializes in litigating employment law cases in federal and state courts and labor and employment agencies. She has significant experience with assisting employers in meeting the legal and practical challenges posed by federal and state laws...

404-586-1817
Eric R. Magnus, Jackson Lewis, Wage and Hour Class Defense Lawyer, Employment Matters Attorney
Shareholder

Eric R. Magnus is a Shareholder in the Atlanta, Georgia, office of Jackson Lewis P.C. His practice is focused primarily on defending federal and state wage and hour class and collective actions in jurisdictions across the United States.

Mr. Magnus’ collective and class action practice focus primarily on “donning and doffing,” “off-the-clock” and misclassification wage and hour cases. Mr. Magnus has obtained summary judgment at the district and circuit court levels in Fair Labor Standards Act and state law cases across the country. Mr. Magnus has also obtained favorable settlements in nationwide off-the-clock, donning and doffing and misclassification cases in several jurisdictions. He is an active member of the firm’s national class action and wage hour practice groups. Mr. Magnus also regularly advises clients prospectively on proper classifications of employees and on effective methods to avoid off-the-clock claims.

404-525-8200
Justin R. Barnes, Jackson Lewis, Federal Employment Lawyer, Discrimination Allegations Attorney
Principal

Justin R. Barnes is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He represents employers in federal and state courts and before administrative agencies on a variety of labor and employment related issues, including collective and class action wage and hour disputes, labor arbitrations, allegations of discrimination, and employment-related contract disputes.

Mr. Barnes’ practice is focused primarily on defending complex wage and hour class and collective actions in state and federal courts across the...

404-586-1809