December 6, 2018, Introduced by Reps. Camilleri, Hammoud, Clemente, Greig and Wittenberg and referred to the Committee on Commerce and Trade.
A bill to require certain employers to accept and accommodate
a request for changes to an employee's work schedule; to specify
the procedure and grounds for denying a request; to require notice
or posting of certain information; and to provide remedies and
sanctions for a violation of the act.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"employee scheduling accommodation act".
Sec. 2. As used in this act:
(a) "Bona fide business reason" means any of the following:
(i) The identifiable burden of additional costs to an
employer, including the cost of productivity loss, retraining or
hiring employees, or transferring employees from 1 facility to
another facility.
(ii) A significant detrimental effect on the employer's
ability to meet organizational needs or customer demand.
(iii) A significant inability of the employer, despite good-
faith efforts, to reorganize work among existing staff.
(iv) A significant detrimental effect on business performance.
(v) Insufficiency of work during the periods an employee
proposes to work.
(vi) The need to balance competing scheduling requests when it
is not possible to grant all of those requests without a
significant detrimental effect on the employer's ability to meet
organizational needs.
(b) "Career-related educational or training program" means an
educational or training program or program of study that is both of
the following:
(i) Offered by a public, private, or nonprofit career and
technical education school, institution of higher education, or
other entity that provides academic education, career and technical
education, or training, including remedial education or English as
a second language.
(ii) A program that leads to a recognized postsecondary degree
or certificate and provides career awareness information.
(c) "Caregiver" means an individual who is a significant
provider of any of the following:
(i) Ongoing care or education, including responsibility for
securing the ongoing care or education, of a child.
(ii) Ongoing care, including responsibility for securing the
ongoing care, of an individual with a serious health condition who
is in a family relationship with the individual who is age 65 or
older.
(d) "Child" means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of an individual standing in
loco parentis to that child, who is either under age 18 or is age
18 or older and incapable of self-care because of a mental or
physical disability.
(e) "Domestic partner" means the individual recognized as
being in a relationship with an employee under a domestic
partnership, civil union, or similar law of the state in which the
employee resides.
(f) "Employee" means an individual who performs services for
an employer in this state, who is compensated on an hourly basis,
and for whom the employer is required to provide a federal form
1099. Employee does not include an employee of the federal
government.
(g) "Employer" means a person, excluding this state and the
federal government, engaged in commerce or in an industry or
activity affecting commerce that employs 15 or more employees and
includes a person that acts, directly or indirectly, in the
interest of such an employer as to the employees of the employer,
and a successor in interest of an employer. For purposes of
determining the number of employees, all employees performing work
for compensation on a full-time, part-time, or temporary basis are
counted, except that if the number of those employees who perform
work for compensation fluctuates, the number may be determined for
a calendar year based on the average number of those employees who
performed work for compensation during the preceding calendar year.
(h) "Family relationship" means a relationship with a child,
spouse, domestic partner, parent, grandchild, grandparent, sibling,
or parent of a spouse or domestic partner.
(i) "Minimum number of expected work hours" means the minimum
number of hours an employee will be assigned to work on a weekly or
monthly basis.
(j) "Parent" means a biological or adoptive parent, a
stepparent, or an individual who stood in a parental relationship
to an employee when the employee was a child.
(k) "Parental relationship" means a relationship in which an
individual assumed the obligations incident to parenthood for a
child and discharged those obligations before the child reached
adulthood.
(l) "Part-time employee" means an individual who works fewer
than 30 hours per week on average during any 1-month period.
(m) "Retail, food service, or cleaning employee", subject to
subdivision (n), means an individual employee who is employed in
any of the following occupations:
(i) Retail sales occupations, including first-line supervisors
of sales workers, cashiers, gaming change individuals and booth
cashiers, counter and rental clerks, parts salespersons, and retail
salespersons.
(ii) Food preparation and serving related occupations,
including supervisors of food preparation and serving workers,
cooks and food preparation workers, food and beverage serving
workers, and other food preparation and serving related workers.
(iii) Building cleaning occupations, including janitors and
cleaners, maids and housekeeping cleaners, and building cleaning
workers.
(n) "Retail, food service, or cleaning employee" does not
include an individual employed in a bona fide executive,
administrative, or professional capacity, as defined for purposes
of section 13(a)(1) of the fair labor standards act of 1938, 29 USC
213(a)(1).
(o) "Serious health condition" means an illness, injury,
impairment, or physical or mental condition that involves
continuing treatment by a health care provider or inpatient care in
a hospital, hospice, or residential medical care facility.
(p) "Sibling" means a brother or sister, whether related by
half blood, whole blood, or adoption, or as a stepsibling.
(q) "Split shift" means a schedule of daily hours in which the
hours worked are not consecutive, except that a schedule in which
the total time out for meals does not exceed 1 hour is not treated
as a split shift.
(r) "Spouse" means an individual with whom an individual
entered into a marriage as defined or recognized under state law in
the state in which the marriage was entered into.
(s) "Work schedule" means those days and times within a work
period when an employee is required by an employer to perform the
duties of the employee's employment for which the employee will
receive compensation.
(t) "Work schedule change" means a modification to an
employee's work schedule, such as an addition or reduction of
hours, cancellation of a shift, or a change in the date or time of
a work shift, by an employer.
(u) "Work shift" means the specific hours of the workday
during which an employee works.
Sec. 3. (1) An employee may request of his or her employer a
change in the terms and conditions of employment related to any the
following:
(a) The number of hours the employee is required to work or be
on call for work.
(b) The times when the employee is required to work or be on
call for work.
(c) The location where the employee is required to work.
(d) The amount of notification the employee receives of work
schedule assignments.
(e) Minimizing fluctuations in the number of hours the
employee is scheduled to work on a daily, weekly, or monthly basis.
(2) If an employee applies to his or her employer to request a
change in the terms and conditions of employment under subsection
(1), the employer shall engage in a timely, good-faith interactive
process with the employee that includes a discussion of potential
work schedule changes that would meet the employee's needs. The
employer shall either grant or deny the request. If the employer
denies the request, the employer shall consider alternatives to the
proposed change that might meet the employee's needs and shall
grant or deny a request for an alternative change. The employer
shall provide the employee with a written statement of the reason
for denial of a request.
(3) If the employee making a request for a change provides
information that requires clarification, the employer shall explain
what further information is needed and give the employee reasonable
time to produce the information.
Sec. 4. (1) If an employee makes a request for a change in the
terms and conditions of employment under section 3 because of a
serious health condition of the employee, the employee's
responsibilities as a caregiver, or the employee's enrollment in a
career-related educational or training program, or if a part-time
employee makes a request for such a change for a reason related to
a second job, the employer shall grant the request unless the
employer has a bona fide business reason for denying the request.
(2) If an employee makes a request for a change in the terms
and conditions of employment under section 3 for a reason other
than the reasons set forth in subsection (1), the employer may deny
the request for any reason that is not unlawful. If the employer
denies such a request, the employer's statement of the reason for
denial under section 3(2) must indicate whether the reason was a
bona fide business reason.
Sec. 5. (1) Unless an employee is scheduled for less than 4
hours of work, the employer shall pay a retail, food service, or
cleaning employee for at least 4 hours at the employee's regular
pay rate for each day on which the employee reports for work under
specific instructions but is given less than 4 hours of work. If
the employee is scheduled for less than 4 hours, the employer shall
pay the employee for the employee's scheduled hours for that day
even if given less than the scheduled hours of work.
(2) An employer shall pay a retail, food service, or cleaning
employee for at least 1 hour at the employee's regular pay rate for
each day the employee is given specific instructions to contact the
employer, or wait to be contacted by the employer, less than 24
hours in advance of the start of a potential work shift to
determine whether the employee must report to work for the shift.
(3) An employer shall pay a retail, food service, or cleaning
employee for 1 additional hour at the retail, food service, or
cleaning employee's regular pay rate for each day during which the
employee works a split shift.
Sec. 6. (1) On or before a new retail, food service, or
cleaning employee's first day of work, the employer shall inform
the employee of the employee's work schedule and the minimum number
of work hours the employee is expected to be assigned to work per
month.
(2) Except as provided in subsections (3) and (6), if the
employee's work schedule changes after the notice under subsection
(1), the employer shall provide the employee with his or her new
work schedule not less than 14 days before the first day of the new
work schedule. If the minimum number of work hours the employee is
expected to be assigned changes, the employer shall provide
notification of the change not less than 14 days before the first
day the change takes effect.
(3) An employer may make work schedule changes, including
offering additional hours of work to a retail, food service, or
cleaning employee beyond those previously scheduled, but for each
work shift that is changed with less than 24 hours' notice, the
employer must provide 1 extra hour of pay at the employee's regular
rate. The requirement for the extra hour of pay does not apply if
the need to schedule the employee is due to the unforeseen
unavailability of an employee previously scheduled to work that
work shift or as provided in subsection (6).
(4) The notifications required under subsections (1) and (2)
must be made to the employee in writing. This subsection does not
prohibit an employer from using any additional means of notifying
an employee of the employee's work schedule.
(5) Each employer employing a retail, food service, or
cleaning employee subject to this act shall post, and keep posted,
the work schedule in a place in every establishment where the
retail, food service, or cleaning employee is employed and can
readily observe the work schedule. An employer may comply with this
subsection by making the schedule available and accessible by
electronic means to all employees.
(6) Subsections (2) and (3) do not apply to a situation in
which a retail, food service, or cleaning employee works in place
of another employee who has been scheduled to work a particular
shift if the change in schedule is mutually agreed upon by the
employees.
Sec. 7. Sections 5 and 6 do not apply during periods when
regular operations of the employer are suspended due to events
beyond the employer's control.
Sec. 8. (1) An employer shall not interfere with, restrain, or
deny the exercise of or the attempt to exercise a right of an
employee under this act.
(2) An employer shall not discharge, threaten to discharge,
demote, suspend, reduce work hours of, or take any other adverse
employment action against an employee in retaliation for exercising
his or her rights under this act or opposing a practice prohibited
by this act. Retaliation includes taking an adverse employment
action against an employee based on the employee's eligibility or
perceived eligibility to request or receive a change in the terms
and conditions of employment, as described in section 3, for a
reason stated in section 4(1).
(3) A person shall not discharge or in any other manner
discriminate against an individual because the individual has done
any of the following:
(a) Filed a charge or instituted or caused to be instituted a
proceeding under or related to this act.
(b) Given, or is about to give, information in connection with
an inquiry or proceeding relating to a right provided under this
act.
(c) Testified, or is about to testify, in an inquiry or
proceeding relating to a right provided under this act.
Sec. 9. (1) An employer that violates section 8 is liable to
an affected individual for damages and appropriate equitable
relief, including employment, reinstatement, and promotion.
(2) An action for damages or equitable relief under subsection
(1) may be brought in a court of competent jurisdiction by 1 or
more employees on their own behalf or on behalf of themselves and
other similarly situated employees.
(3) In an action under this section, the court shall, in
addition to damages and equitable relief, award reasonable attorney
fees, reasonable expert witness fees, and other costs of the action
to a prevailing plaintiff.
Sec. 10. An employer that willfully and repeatedly violates
section 6(1), (4), or (5) is responsible for a state civil
infraction and may be ordered to pay a civil fine of not more than
$100.00 per violation. An employer that willfully and repeatedly
violates section 8(2) or (3) is responsible for a state civil
infraction and may be ordered to pay a civil fine of not more than
$1,100.00 per violation.
Sec. 11. (1) Except as provided in subsection (2), an action
under this act must be brought within 2 years after the date of the
last alleged violation.
(2) An action for a willful violation of section 8 may be
brought within 3 years after the date of the last alleged
violation.
Sec. 12. (1) Each employer shall post, and keep posted, in a
conspicuous place on the premises of the employer where notices to
employees and applicants for employment are customarily posted, a
notice setting forth excerpts from, or summaries of, the pertinent
provisions of this act and information pertaining to the filing of
a complaint under this act.
(2) An employer that willfully violates this section is
responsible for a state civil infraction and may be ordered to pay
a civil fine of not more than $100.00 for each separate offense.
Sec. 13. This act provides minimum requirements and does not
preempt, limit, or otherwise affect the applicability of any other
law, regulation, requirement, policy, or standard that provides for
greater rights for employees than are required in this act.
Sec. 14. This act does not apply to an employee covered by a
bona fide collective bargaining agreement if the terms of the
collective bargaining agreement include terms that govern work
scheduling practices.
Enacting section 1. This act takes effect 90 days after the
date it is enacted into law.