Proposed Fair Scheduling Rule in Minneapolis Fails To Differentiate Between Exempt and Non-Exempt Employees

According to media reports (including here, here, here, and here), many employers in Minneapolis are upset about the proposed fair scheduling requirements under consideration by the Minneapolis City Council as part of the “Working Families Agenda.” There are a number of problems in the proposed ordinance, such as undefined terms, a number of mandates that do not include any exceptions (like requiring flexible working arrangements), and a presumption that any adverse action taken by an employer within one year is retaliatory. However, one of the most problematic aspects of the proposed ordinance is that it does not differentiate between employees who are exempt or non-exempt under the Fair Labor Standards Act.

Exempt and non-exempt employees are different in many respects, and both types of employees are well represented in Minneapolis. Among other things, exempt employees – like engineers, doctors, teachers, managers, executives, creative professionals, lawyers, etc… – often do not work fixed schedules and are paid on a salary basis, as opposed to an hourly basis. In exchange for a fixed salary, these employees are generally expected to work whatever hours are necessary to get their work done.  For this reason, many employers do not track the precise work hours of their exempt employees.  Exempt employees are also typically paid more than non-exempt employees, particularly in light of the DOL’s recent proposal to raise the minimum salary basis for many exempt jobs to $50,440 per year. In contrast, non-exempt employees – like waiters and waitresses, factory workers, receptionists, janitors, etc… – are typically paid on an hourly basis, have closely tracked work hours, and, at least in some cases, work well-defined shifts that can be scheduled somewhat in advance (though perhaps not 28 days in advance).

The fair scheduling proposal under consideration by the Minneapolis City Council appears to be clearly aimed at non-exempt employees, primarily in service industries. It requires that employees must have well-defined schedules established at least 28 days in advance. It also assumes that employees receive hourly pay by requiring “predictability pay” measured in hourly increments as well as time-and-a-half for certain work performed. But the proposed ordinance does not distinguish between exempt and non-exempt employees. Instead, it broadly states that its protections will apply to “[a]ll employees . . . unless a collective bargaining agreement waives the law in clear and unambiguous terms.”

Applying the fair scheduling requirements of the proposed ordinance to exempt employees is like trying to fit a square peg into a round hole. If a teacher who is paid a fixed salary stays up late grading papers and then teaches a class less than 11 hours later the next day, the fair scheduling ordinance would arguably require the school to pay that teacher time-and-a-half the following morning. Or if a hospital called in extra emergency room doctors due to an emergency (for example, a bridge collapse) without 28 days’ advance notice, the hospital would arguably be required to pay predictability pay to those doctors.

As currently proposed, the fair scheduling provision would arguably apply to high-ranking officials of the City of Minneapolis, including the Mayor, the Chief of Police, and the City Attorney.  These are likely not the employees that the Minneapolis City Council had in mind when it developed its proposal, but the fair scheduling ordinance does not provide any means to distinguish these exempt employees from the non-exempt employees for whom the ordinance was intended.

According to the Minneapolis St. Paul Business Journal, the only other major market in the country with a similar fair scheduling law is San Francisco, but San Francisco’s fair scheduling ordinance only applies to the retail and hospitality industries, where most of the employees are non-exempt. If the fair scheduling ordinance under consideration for Minneapolis included a similar limitation or simply excluded exempt employees, many of the difficulties described above could be avoided.

Takeaway: The fair scheduling proposal in the “Working Families Agenda” under consideration by the Minneapolis City Council does not differentiate between exempt and non-exempt employees. Employers who feel strongly about the proposal should contact their city council members and let them know their thoughts on the proposed ordinance.  Employers may also submit comments via email to at any time before October 16, 2015.

*****For employers who are interested, Minneapolis City Council members have scheduled several community forums to get feedback on the proposed ordinance.  These forums include the following: 

  • September 30, 2015, at 6:30 p.m., at the Mayflower Church, 106 E. Diamond Lake Rd, Minneapolis, MN;
  • October 1, 2015, at 10-11:30 a.m., at the City Church, Commons Room, 1501 W. 54th St., Minneapolis, MN;
  • October 1, 2015, at 6:30 p.m., at the Central Area Neighborhood Development Association, 3736 Chicago Ave S., Minneapolis, MN; and
  • October 13, at 12-1 p.m., at the Fifth Precinct Police Department, 3101 Nicollet Ave., Minneapolis, MN.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on September 30, 2015, in Public Interest, Wage and Hour and tagged . Bookmark the permalink. Comments Off on Proposed Fair Scheduling Rule in Minneapolis Fails To Differentiate Between Exempt and Non-Exempt Employees.

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