Restrictive Scheduling: A Non-Starter for Maine Retailers

In 2019, before any of us could comprehend what a global pandemic could look like, Maine considered a Restrictive Scheduling bill that would penalize employers for work schedule changes with less than two weeks’ notice. That bill applied to employers of five or more, but was unanimously killed by the Maine Legislature.

It’s now 2023, and almost exactly three years after the world shut down from COVID-19. If anything, work schedules have become more flexible for employees driven by record low unemployment, competition for workers, and flexible work schedules. So, it is incredibly disheartening to see a Restrictive Scheduling bill (LD 1190) being introduced in Maine this year. The only difference this time is that this bill will only apply to employers of 250 or more instead of five or more. This change is the oldest gimmick in the book. Carve out the groups that will scream the loudest, pass the bill, and then change the law in subsequent years.

This proposal shows a complete lack of understanding of how the workplace works and how scheduling happens. It also presumes contentious relationships when the reality is that relationships are those of respect, open communication and flexibility.

LD 1190 amends the law regarding employment practices by mandating that all businesses with 250 or more employees worldwide:

• Provide new employees with a written estimate of the minimum number of days, hours and shifts per month.
• Provide two weeks’ notice of work schedules.
• For notice of schedule changes, the employer “shall provide notice by in-person conversation or by telephone call and shall provide notice in writing, including e-mail, text message or other electronic communication.”
• Compensate the employee with one hour of pay when there is a schedule change with less than 7 days’ notice; 2 hours of pay with less than 24 hours’ notice on shifts of 4 hours or less; and 4 hours of pay with less than 24 hours’ notice on shifts of more than 4 hours.

There are some exemptions to the bill:

• If there are threats to employees or property.
• If civil authorities recommend that work not begin or continue.
• If utilities like electric, water or gas, are not supplied.
• An act of God or state of emergency.
• If the employee requests or trades shifts.

Scheduling is a complex process involving constantly changing variables. Employers must consider the business needs when developing schedules. A variety of data points are used including: sales forecasts, productivity, historic payroll and hour reports, workload, weather, marketing, events, transportation/logistics, and customer traffic patterns. Any mandated changes to scheduling can disrupt each of these factors. Businesses utilize considerable resources to predict staffing needs. However, the farther in advance those predictions are made, the less accurate the forecasting model becomes creating inefficiencies and disruptions.

Businesses rely on employees to provide an unparalleled customer service experience. Employees rely on their employers to provide jobs with schedules that fit their needs, which are as varied as the people who work in the many businesses. Many employees choose certain industries specifically because the field allows them to work a flexible schedule. Businesses regularly consider a broad range of factors when scheduling, including employee preferences and availability. Employees are drawn to these employers to pick up flexible hours.

Given Maine’s weather, it is easy to imagine a situation where work schedules can fluctuate at the last minute. One must look no further than this winter to understand how a large snowstorm can bring the business community to a halt but also how a missed forecast can leave businesses scrambling. And the weather is not just bad weather. In the summer, nice weather patterns can also have a dramatic impact on operations.

Creates unintended consequences from a "one size fits all" proposal. Despite an employer's best efforts to predict scheduling needs accurately, the need for employees in any given location is subject to external factors that may change frequently, unpredictably, and for reasons beyond the employer's control. 
 
Every business and every employee has unique needs. A "one size fits all" statute fails to recognize the unique needs as well as the negative impact that they will impose on employment opportunities.

About the author: Curtis Picard, CAE, is the President and CEO of the Retail Association of Maine

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• Investing in People
• Retail Works for All of Us
• Workforce