The Euless, Texas Fair Overtime and Scheduling Standards Ordinance that imposed predictive scheduling obligations on covered employers is no more.
The Unusual Origin of the Ordinance
The people of Euless may propose legislation by initiative by submitting a petition to the City Council that is signed by 3% of registered voters. Euless is home to the southwestern portion of the Dallas Fort Worth International Airport. During January 2020, a union representing airport catering workers filed an initiative petition with the City of Euless proposing Fair Overtime and Scheduling Standards. The petition had 1,280 valid signatures, exceeding the 907 (3%) required for it to be presented to the Euless City Council for consideration. The City’s Home Rule Charter gave the City Council no discretion to amend the proposed initiative – it could only make a counter-proposal on the same subject to appear on the ballot on Election Day, which it did not do. As a result, the Fair Overtime and Scheduling Standards appeared on the ballot on Election Day, November 3, 2020, as Proposition B:
Proposition B “Employers with more than 200 Employees in the city of Euless shall provide their Employees with a written Work Schedule no later than 10 days before the first day of any new schedule. An Employee may decline, without penalty, to work any hours or additional shifts not included in the Posted Week Schedule. In an Emergency, an Employer may require an Employee to work additional hours or shifts not included in the Posted Work Schedule without obtaining their consent; these additional hours or shifts shall be paid at a rate three times that of the regular hourly rate of pay. If an Employer reduces an Employee’s hours from what is included in the Posted Work Schedule, Employee shall be paid for one-half of the total hours reduced at the Employee’s regular hourly rate. The Employer must keep records and file reports with the City when it utilizes the Emergency overtime option. Retaliation against employees who exercise their rights under this ordinance is prohibited.”
The Proposition passed by a wide margin, with 15,828 for and 5,833 against, and a 70.69% voter turnout. It was incorporated as Chapter 95 of the Euless Code, and became effective on November 12, 2020, covering employers with at least 200 employees (except hospitals, other facilities providing medical care, and public employers).
Lack of Attention or Enforcement During its Four Years in Effect
Unlike the short-lived Texas paid sick leave ordinances in Dallas, Austin, and San Antonio that were quickly challenged at the state legislative level and eventually enjoined by the courts, the Euless Fair Overtime and Scheduling Standards Ordinance received little attention, and remained in place. There were no publicly reported complaints or enforcement—likely due to the impact of the COVID-19 pandemic on air travel and covered businesses, and that the City of Euless had no department to promote, provide guidance or enforce the law, which had not been enacted in the normal course through the City Council.
The Texas Death Star Law Provided Relief, But Was Then Subject to Court Challenge
On September 1, 2023, the Texas Regulatory Consistency Act took effect. Known by critics as the Death Star Law, in its broadest reading, the Act nullified any local employment law that conflicted with or exceeded state law.
While the Texas Regulatory Consistency Act was immediately the subject of legal challenge and found unconstitutional by a state district court judge, the state immediately appealed. The Office of the Texas Attorney General promptly issued a statement that the litigation had no immediate impact on the enforceability of the Act because the appeal had automatically stayed the effect of the court’s declaratory judgment. Despite this statement, Texas employers continued to feel uncertain regarding their obligation to comply with local employment laws, including the Euless Overtime and Scheduling Standards Ordinance.
In this environment, most cities have not acted, waiting for the courts to decide the validity of the Texas Regulatory Consistency Act. But now Euless has acted.
September 24, 2024: Euless City Council Repealed the Fair Overtime and Scheduling Standards Ordinance
On September 24, 2024, the Euless City Council unanimously voted to repeal the Euless Overtime and Scheduling Standards Ordinance, noting that it was preempted by the Texas Regulatory Consistency Act.
For covered employers (employers with at least 200 employees, except hospitals, other facilities providing medical care, and public employers) this repeal confirms that they have no obligation to comply with the Ordinance. Many covered employers were already posting work schedules at least 10 days before the start of the workweek and are likely to continue to do so. However, the repeal of the Ordinance clarifies that covered employers are not required to pay predictability pay for employer-initiated schedule changes or get written consent for adding hours not included in the posted schedule. To ensure an orderly transition, we recommend employers communicate with impacted employees regarding any changes to their scheduling practices they may implement in response to the repeal.
