HOUSE BILL NO. 4035
A bill to require certain employers to provide written work schedules to certain employees; to require compensation for changes to a work schedule in certain circumstances; to allow employees to request changes to work schedules; to prohibit employers from requiring employees to work during certain rest periods; to require certain notices and postings; to prohibit retaliation; to provide for the powers and duties of certain state officers and entities; to provide for the promulgation of rules; and to provide remedies and sanctions.
the people of the state of michigan enact:
Sec. 1. This act may be cited as the "employee fair scheduling act".
(a) "Chain" means an establishment that is part of an affiliation of 2 or more establishments in the United States that are owned by the same person and operate under an identical or substantially similar trade name or mark as those terms are defined in section 1 of 1969 PA 242, MCL 429.31.
(b) "Department" means the department of licensing and regulatory affairs.
(c) "Employee" means, subject to subdivision (d), an individual who is employed by an employer and in that employment provides services related to any of the following at a retail establishment, hospitality establishment, or food services establishment:
(i) Retail trade, as that term is used in code 44-45 of the 2012 North American Industry Classification System.
(ii) Hotels or motels, as those terms are used in code 721110 of the 2012 North American Industry Classification System.
(iii) Food services, as that term is used in code 722 of the 2012 North American Industry Classification System.
(d) "Employee" does not include any of the following:
(i) An individual engaged in administrative, executive, or professional work and to whom all of the following apply:
(A) Performs predominately intellectual, managerial, or creative tasks.
(B) Exercises discretion and independent judgment.
(C) Earns a salary and is paid on a salary basis.
(ii) An individual employed by an employer to perform services for a client of the employer if the employer's primary business is to provide clients with the temporary services of 1 or more individuals who are under contract with the employer.
(e) "Employer" means a person, including, but not limited to, a chain or integrated enterprise, that employs 100 or more individuals worldwide and is a retail establishment, hospitality establishment, or a food services establishment. The number of individuals employed by an employer must be determined based on the average number of individuals employed on each working day during each of 20 or more workweeks in the current calendar year or immediately preceding calendar year.
(f) "Food services establishment" means the fixed point of sale location for establishments defined as food services and drinking places in code 722 of the 2012 North American Industry Classification System.
(g) "Hospitality establishment" means a hotel or motel as those terms are used in code 721110 of the 2012 North American Industry Classification System, or a casino hotel as that term is used in code 721120 of the 2012 North American Industry Classification System.
(h) "Integrated enterprise" means 2 or more separate entities, 1 of which controls the operations of the others, as determined based on the following factors:
(i) The degree of interrelation between the operations of multiple entities.
(ii) The degree to which the entities share common management.
(iii) The degree to which the entities have centralized control of labor relations.
(iv) The degree of common ownership or financial control over the entities.
(v) Any other factor as determined by the department.
(i) "On-call shift" means any time that an employer requires an employee to be available to work or to contact the employer or wait to be contacted by the employer for determining if the employee must report to work, regardless of whether the employee is located on the employer's premises.
(j) "Regular rate of pay" means the regular hourly rate or hourly equivalent that an employer must pay an employee for each hour the employee works during a given work shift, including any shift differential pay. Regular rate of pay does not include any of the following:
(ii) Bonuses or other incentive payments.
(iii) Overtime, holiday pay, or any other premium rate.
(iv) Additional compensation required under section 11 or 15.
(k) "Retail establishment" means the fixed point of sale location for a retail trade establishment as that term is used in codes 441110 to 453998 of the 2012 North American Industry Classification System.
(l) "Shift differential pay" means a pay differential meant to compensate an employee for work performed under differing conditions, such as for working at night. Shift differential pay does not include any additional compensation an employer is required to pay an employee under section 11 or 15.
(m) "Successor employer" means an employer that is substantially the same entity as a predecessor employer as determined by criteria established by the department.
(n) "Time of hire" means the period after an acceptance of an offer of employment but before commencement of the employment.
(o) "Work schedule" means the hours, days, and times, including regular work shifts and on-call shifts, when an employee is required by an employer to perform duties of employment for which the employee will receive compensation.
(p) "Work shift" means the specific and consecutive hours the employer requires the employee to work.
(q) "Workweek" means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or 7 consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week, and the beginning of a workweek may change if the change is intended to be permanent.
(r) "Writing" means and "written" describes a printed or printable communication in physical or electronic format including a communication that is transmitted through email, text message, or a computer system or is otherwise sent and stored electronically.
(s) "Year" means any fixed consecutive 12-month period of time.
Sec. 5. (1) An employer shall provide a new employee with a written good-faith estimate of the employee's work schedule at the time of hire. An employer shall provide the good-faith estimate in the language the employer typically uses to communicate with the employee. The good-faith estimate must include all of the following:
(a) The median number of hours the employee can expect to work in a typical 1-month period.
(b) If the employer maintains a voluntary standby list under section 7, all of the following:
(i) An explanation of the voluntary standby list.
(ii) A statement regarding whether an employee who is not on the voluntary standby list can expect to work on-call shifts and, if so, an objective standard for when an employee not listed on the voluntary standby list may be expected to be available to work on-call shifts.
(c) The written notice required under section 9.
(2) A good-faith estimate described in subsection (1) may be based on a prior year schedule if it is an estimate of seasonal or episodic work.
Sec. 7. (1) An employer may maintain a voluntary standby list of employees who the employer will request to work additional hours to address unanticipated customer needs or unexpected employee absences. An employer shall provide an employee on the list with notice of additional hours available in writing or by in-person conversation or telephone call. An employee who receives notice of additional hours available under this section may decline to accept the additional hours offered. An employee who agrees to work additional hours in response to an employer's request under this section is not eligible for additional compensation under section 15 for the resulting change to the employee's written work schedule. An employee may request to be removed from the list at any time. An employer shall not include an employee on the list unless all of the following conditions are met:
(a) The employee agrees in writing to be included on the list.
(b) The employer notifies the employee in writing of all of the following:
(i) That the list is voluntary.
(ii) How the employee may request to be removed from the list.
(iii) That the employee is not required to accept the additional hours offered.
(iv) That the employee is not eligible for additional compensation under section 15 for the changes to the employee's written work schedule resulting from the employee's acceptance of additional hours offered to the employee as a result of being on the list.
(2) The voluntary standby list is not a list of employees scheduled for on-call shifts and the employer is not required to include a list of employees on the standby list in the written work schedule described in section 9.
(3) An employer shall not retaliate against an employee for any of the following:
(a) Not requesting or agreeing to be added to the voluntary standby list.
(b) Requesting to be removed from the list.
(c) Declining the employer's request that the employee work additional hours as a result of the employee being on the list.
(4) An employer that violates this section may be ordered to pay a civil fine of not more than $2,000.00. Each violation is a separate and distinct violation. For a continuing violation, each day that an employer is in violation is a separate and distinct violation. The prosecutor of the county in which the violation occurred or the attorney general may bring an action to collect the fine.
Sec. 9. (1) Except as otherwise provided in subsection (4), an employer shall provide an employee with a written work schedule at least 14 calendar days before the first day of the work schedule. The employer shall post the written work schedule in a conspicuous location that is accessible to employees. An employer shall provide a written work schedule that runs through the last date of the posted work schedule in effect at the time of delivery to the following employees at the following times:
(a) For a new employee, on or before the employee's first day of work.
(b) For an employee on a leave of absence, on the employee's first day of work after the leave of absence.
(2) A written work schedule must meet all of the following requirements:
(a) Be in English and in the language the employer typically uses to communicate with its employees.
(b) Include all work shifts and on-call shifts for the work period.
(3) After providing the advance notice required under subsection (1), an employer shall not change a written work schedule unless the employer has provided the employee with timely notice of the change in writing or by in-person conversation or telephone call. An employee may decline any work shifts not included in the employee's written work schedule.
(4) At any time after the advance notice of written work schedule required under this section, an employee may request in writing that the employer add the employee to 1 or more work shifts or on-call work shifts. A change to the employee's written work schedule resulting from an employee-requested work schedule change is not subject to the advance notice required under this section.
Sec. 11. (1) Subject to subsection (2), an employer shall not schedule or require an employee to work during either of the following rest periods:
(a) The 10 hours immediately following the end of the previous calendar day's work shift or on-call shift.
(b) The 10 hours immediately following the end of a work shift or on-call shift that spanned 2 calendar days.
(2) Subsection (1) does not apply if the employee agrees in writing to work during the rest period.
(3) An employer shall compensate an employee for each hour or portion of an hour that the employee works during a rest period described in subsection (1) at 1.5 times the employee's regular rate of pay. This subsection does not apply to any hour or portion of an hour during which an employee provides roadside assistance services. As used in this subsection, "roadside assistance" means off-site repair assistance rendered to a motorist with a disabled vehicle.
Sec. 13. At the time of hire and during employment, an employee may identify any limitations or changes in the employee's work schedule availability. The employee may also request not to be scheduled for work shifts during certain times or at certain locations. An employer may require the employee to provide reasonable verification of the need for a request made under this section. The employer shall pay any reasonable costs for providing medical verification, including lost wages, that are not paid under a health benefit plan in which the employee is enrolled. An employer is not required to grant an employee's request under this section. An employer shall not retaliate against an employee for making a request under this section.
Sec. 15. (1) An employer shall provide the following compensation to an employee for each employer-initiated change that occurs to the employee's written work schedule without the advance notice required under section 9:
(a) 1 hour of pay at the employee's regular rate of pay, in addition to any wages earned, in any of the following circumstances:
(i) More than 30 minutes of work are added to the employee's work shift.
(ii) The date or start or end time of the employee's shift is changed with no loss of hours.
(iii) The employee is scheduled for an additional shift or on-call shift.
(b) The greater of the minimum wage rate established under section 4 of the improved workforce opportunity wage act, 2018 PA 338, MCL 408.934, or 0.5 times the employee's regular rate of pay per hour for each hour that the employee does not work in any of the following circumstances:
(i) Hours are subtracted from the employee's work shift before or after the employee reports for work.
(ii) The date or start or end time of the employee's shift is changed, resulting in a loss of hours.
(iii) The employee's work shift is canceled.
(iv) The employer does not ask the employee to perform work while the employee is scheduled for an on-call shift.
(2) Subsection (1) does not apply to any of the following circumstances:
(a) An employer subtracts hours from an employee's work schedule for disciplinary reasons for just cause, if the employer documents the incident leading to the employee's discipline in writing.
(b) An employee's work shift or on-call shift cannot begin or continue because of any of the following:
(i) A threat to employees or property.
(ii) The recommendation of a public official.
(iii) Failure of a public utility to supply electricity, water, or natural gas or there is a failure in the public utilities or sewer system.
(iv) A natural disaster or a similar cause not within the employer's control.
(v) A ticketed event is canceled, rescheduled, or changes in duration because of circumstances that are outside the employer's control.
(c) An employer requests that an employee on a voluntary standby list work additional hours as described in section 7 and the employee consents to work the additional hours.
(d) An employer requests that an employee work additional hours to address unanticipated customer needs or unexpected employee absence and all of the following conditions are met:
(i) The employee consents in writing to work the additional hours.
(ii) Both of the following conditions are met:
(A) If the employer maintains a voluntary standby list as described in section 7, the employer has contacted all of the employees listed on the voluntary standby list and requires additional employee coverage.
(B) If the employee is working a work shift at the time the employer makes the request, the employer makes the request either individually or as part of a group communication or, if the employee is not working a work shift at the time the employer makes the request, the employer makes the request through a group communication.
(3) As used in this section:
(a) "Group communication" means communication to all eligible employees, written or oral.
(b) "Ticketed event" means a sporting, entertainment, civic, charitable, or other event that requires a ticket for admission. The ticket may be electronic, physical, or a name on a list held by the event organizer.
Sec. 17. The department shall make available to employers a poster that includes the rights of employees under this act. An employer shall display the poster at its workplace so that it is reasonably conspicuous and accessible. If displaying the poster is not feasible, including, but not limited to, situations in which an employer's employees work remotely or do not have a regular workplace or job site, the employer shall provide the poster on an individual basis in a physical or electronic format.
Sec. 19. An employer shall retain records that document the employer's compliance with this act for at least 7 years.
Sec. 21. An employer shall not do any of the following:
(a) Interfere with, restrain, deny, or attempt to deny the exercise of any right protected under this act.
(b) Retaliate or in any way discriminate against an individual with respect to hire, tenure, or any other term or condition of employment because the individual has inquired about the provisions of this act.
Sec. 23. (1) An individual aggrieved by a violation of this act may do either of the following:
(a) File a complaint with the department.
(b) Bring a civil action for appropriate injunctive relief or damages, or both, in the circuit court for the county where the alleged violation occurred or where the person against whom the civil complaint is filed resides or has his or her principal place of business. Filing a complaint with the department under subdivision (a) is not a prerequisite or a bar to bringing an action under this subdivision.
(2) The department shall investigate a complaint it receives under subsection (1). Upon completion of its investigation, the department shall issue a written determination to the complainant and alleged violator that states whether a violation occurred and includes the information the department relied on in making its determination.
Sec. 25. (1) This act does not do any of the following:
(a) Limit an employee's rights or protections otherwise provided by law.
(b) Prohibit an employer from providing an employee with greater rights or benefits, including, but not limited to, compensation and notice, than what is required under this act.
(c) Provide a cause of action to an employee for work schedule changes necessary to accommodate that employee under either of the following:
(i) The paid medical leave act, 2018 PA 338, MCL 408.961 to 408.974.
(ii) The federal family and medical leave act, 29 USC chapter 28.
(2) This act applies to a collective bargaining agreement that is entered into, extended, or renewed on or after the effective date of this act.
Sec. 27. The department may promulgate rules to implement this act pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.