SENATE BILL No. 688

 

 

January 13, 2016, Introduced by Senators BIEDA and ANANICH and referred to the Committee on Government Operations.

 

 

 

     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 any 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 any person, excluding this state and the

 

federal government, engaged in commerce or in any industry or

 

activity affecting commerce that employs 15 or more employees and

 

includes any person that acts, directly or indirectly, in the

 

interest of such an employer as to any of the employees of the

 

employer, and any 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 shall be 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 any 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 any 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 as set forth in

 

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 interactive process shall result in either granting or

 

denying the request. If the request is denied, 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 information provided by the employee making a request

 

for a change 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) shall 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 employee shall

 


be paid 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 the

 

employer shall provide 1 extra hour of pay at the employee's

 

regular rate for each work shift that is changed with less than 24

 

hours' notice. 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)

 

shall 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 any right of any

 

employee as set forth in 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 any employee in retaliation for

 

exercising the rights of an employee under this act or opposing any

 

practice prohibited by this act. Retaliation includes taking an

 

adverse employment action against any employee based on that

 

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 set forth in section 4(1).

 

     (3) A person shall not discharge or in any other manner

 

discriminate against any individual because the individual has done

 

any of the following:

 

     (a) Filed any charge or instituted or caused to be instituted

 

any proceeding under or related to this act.

 

     (b) Given, or is about to give, any information in connection

 

with any inquiry or proceeding relating to any right provided under

 

this act.

 

     (c) Testified, or is about to testify, in any inquiry or

 

proceeding relating to any right provided under this act.

 

     Sec. 9. (1) An employer that violates section 8 is liable to

 

any affected individual for damages and any appropriate equitable

 

relief, including employment, reinstatement, and promotion.

 

     (2) An action for damages or equitable relief under subsection

 

(1) may be brought against an employer 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 guilty of 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 guilty of 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

 

shall not be brought under this act more than 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 guilty

 

of 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 any 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.