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PHILADELPHIA, PA October 10, 2018 – Marriot worker Kat Payne speaks about the need for fair workweek scheduling and the impact current scheduling methods have on poor working families. | Photo by Cory Clark/NurPhoto via Getty Images

Fair workweek laws, which aim to end unpredictable scheduling for workers, explained.

Alicia Fleming had worked as a server at restaurants in Massachusetts for a decade and a half. She enjoyed the work, but after she had her son at the age of 32, she found it impossible to stay in the job.

“The restaurant is looking at their bottom dollar,” Fleming said, “and won’t schedule you unless they absolutely need you. And then you don’t know until a few days before whether or not you’re even going to be asked to work.”

The result was that — as a single parent without close family nearby — Fleming was often scrambling to find childcare. When she wasn’t able to do so on short notice, she’d have to miss a shift. Her income fluctuated from week to week, and even though she was still employed at the restaurant, she was struggling to make ends meet.

Fleming’s experience of an erratic work schedule is common, especially in sectors like restaurants and retail, where workers are often scheduled to work with only a few days or less of notice, are asked to stay late, or are sent home early from a shift. The result is a hectic life with volatile income, in which it’s difficult to plan ahead for child care, doctor’s appointments, or another part-time job (a necessity for many who are not offered full-time hours).

The number of people affected by unpredictable schedules is considerable: Over 9 million people work in food service and 16 million in retail, with estimates of one-third (and at least half of early career workers) receiving less than one week notice on schedules.

Policymakers are starting to pay attention to this problem. Over the past three years, Oregon and a wave of cities including Seattle, San Francisco, Philadelphia, Chicago, and New York City have passed “fair workweek” legislation that aims to make schedules more predictable (or compensate workers when they are unpredictable). The laws require that certain companies — most often, large retail and food service companies employing several hundred people or more — take steps such as posting schedules two weeks in advance, compensating workers if there are last-minute scheduling changes, and allowing sufficient rest time between shifts.

Companies have pushed back against the new laws and, in some cases, have failed to comply with them. Meanwhile, advocates have argued that the costs to companies of giving more advance notice on schedules are minimal, and that following the new laws may actually improve profitability.

For workers, these laws are of huge importance. Both firsthand accounts and recent systematic research suggest that unpredictable scheduling is extremely stressful for workers and their families. Regardless of industry, people should have the ability to balance their family and work lives, and to plan ahead. By requiring advance notice (and compensation for last-minute changes), fair workweek scheduling can significantly raise quality of life for millions of people.

The toll that “just-in-time” scheduling takes on workers

For the last several decades, many companies have shifted to “just-in-time” scheduling, in which managers schedule shifts with little advance notice. A national survey in 2014 showed that 41 percent of early career workers with hourly wages reported seven days or fewer notice on their schedules. The rates in the food service and retail sectors are even higher, as is the rate for workers of color.

Workers often talk about the strain that involuntary unpredictable scheduling puts on their lives. Alicia Fleming recalls trying to make her shifts at the restaurant while scheduling child care last-minute as an incredibly stressful experience. “It felt like all the time, I would think about the money I could make [if I could make the shifts], and what that could do for us, and then be really intent on trying to find somebody for child care,” she told me. (After nearly a year of searching, she managed to find a job with regular hours in office administration, and now works as an organizer for Massachusetts Jobs with Justice, a non-profit that advocates for worker rights.)

Recent large-scale surveys also show evidence of the toll that unpredictable scheduling takes on workers. Researchers Daniel Schneider at the University of California Berkeley and Kristen Harknett at the University of California San Francisco started The Shift Project in 2016 to survey workers at the biggest retail and food employers in the country. (The study is ongoing — as of this month, the authors said they have surveyed nearly 100,000 workers at almost 140 companies.)

In an article published this year, they write that of workers with high levels of scheduling instability — including short notice for shifts, canceled shifts, and “clopening” shifts (in which they work late until close, and then are back at work a few hours later at the store’s opening) — 70 percent reported psychological distress, compared to about 40 percent with more predictable schedules (the authors controlled for demographics and other differences like hourly wage in their analysis).

Unpredictable and unstable schedules also contribute to income volatility. In the US Financial Diaries, a research study tracking the incomes and expenses of hundreds of low- and moderate-income US households over the course of a year, researchers Jonathan Morduch at New York University and Rachel Schneider found that on average, households were making at least 25 percent above or below average monthly income for five months out of the year.

Volatile incomes can compound financial problems: a 2017 survey from the Federal Reserve Board’s Division of Consumer and Community Affairs showed that 40 percent of American families would have trouble coming up with $400 if needed in an emergency. The survey also showed that to come up with such a payment, some have to resort to selling assets or taking out high-interest loans.

How “fair workweek” laws aim to make work more predictable

Fair workweek laws aim to make work more predictable for workers. Where there are scheduling changes with little notice, the laws often require companies to compensate them. Chicago is the latest major city to adopt a fair workweek statute, joining a handful of other cities and one state, Oregon. Other states, including Washington, Connecticut, and Massachusetts, are considering statewide legislation.

The laws most often apply to retail and restaurant employers with at least several hundred employees — though Chicago was the first city to also include health care workers. The laws vary to an extent, but most require employers to post schedules at least two weeks in advance, with compensation to workers if there are changes after that from the employer’s side.

Some also require companies to offer workers additional shifts if they want to work more hours before hiring new employees, and to give good-faith estimates of minimum hours. Finally, some specify that workers be allowed to swap shifts with one another to increase flexibility, or to give input into their shift times, and require a minimum rest break between shifts to prevent employers from requiring workers to do “clopenings.”

Most of the laws went into effect within the last year or two, or will go into effect in the next couple of years. At the federal level, the Schedules that Work Act, first introduced in 2015, has similar rules, including a requirement to give schedules two weeks in advance for employees of retail, cleaning, and food service companies (with compensation if shifts are changed last minute). While the legislation stalled over the past several years, Senator Elizabeth Warren and Representative Rosa DeLauro will be reintroducing it in the coming weeks.

Erin, a 35-year-old in Seattle (who asked to be identified by first name only), has worked since 2014 as a server and then a barista with a large catering company, and said that the impact of the fair workweek law (or “secure scheduling” law as it’s known there) in Seattle was dramatic. Before the law went into effect in 2017, they told me, managers often gave little notice. “I was getting text messages the night before as to when I would be going into work the next day.” This last-minute scheduling was stressful and chaotic, and they said that it was difficult to sleep sometimes, not knowing whether to go to work hours later.

After the law changed, the company shifted to giving a two-week notice on schedules as required, and offering extra compensation if any changes took place on shorter notice than that. “Stress levels went down [in the workplace], and it was a palpable shift,” Erin said.

Advocacy groups in the state including Working Washington are now pushing for statewide legislation, and earlier this year Erin testified in the Washington State Legislature about the importance of the legislation. For Erin, who commutes an hour to Seattle for the job, it would be preferable to find a job closer to home — but until the secure scheduling law is statewide, looking for a job outside of Seattle is too risky: “I really wouldn’t want to go back to an unpredictable schedule,” they said.

Research studies about the impacts of the new laws are starting to emerge. Anna Gassman-Pines at Duke University and Elizabeth Ananat at Columbia University conducted a small study of parents of young children in Emeryville, CA, in which they compared predictability of schedules before and after the 2017 fair workweek law (using companies that were not covered by the law as a control group). Workers at covered companies reported that their schedules improved — with a 35 percent reduction in instability (such as cancelled shifts or changed hours) — as did their sleep quality and levels of stress, compared to no change for workers in the uncovered companies. (Similar studies in Seattle and New York City are underway, though results are not yet publicly available.)

A fight to get companies to follow the new laws

One of the big questions is how well companies will comply with the new laws. Rachel Deutsch at the Fair Workweek Initiative — a collaborative project led by the non-profits Center for Popular Democracy (for which Deutsch works as supervising attorney of worker justice), CPD Action, and United for Respect — told me that it’s too early to draw any firm conclusions. “One [reason] is that with any new law, there is a gradual adjustment of employment practices,” she said.

Susan Lambert, a researcher at the University of Chicago who has long studied scheduling practices and management decisions, said that a big hurdle is that managers have to learn what the new law entails and how to follow it, and this can take time. But another issue, she told me, is the incentives that many companies now have in place for managers: companies give frontline managers budgets for labor hours, along with projected sales numbers — and the way that managers often try to ensure that they are meeting these metrics is by last-minute adjustments to employees’ schedules.

But there are big problems with this model, Lambert said, not just for workers but also for companies themselves. Unpredictability leads to higher employee turnover, she said, which can be costly — but, she said, “companies don’t hold managers responsible for turnover.”

Not only that, but companies would also likely have better sales if they treated employees better, Lambert said. (Researcher Zeynep Ton also argues as much in her book The Good Jobs Strategy.) Lambert and colleagues recently conducted a study at Gap stores — in stores that randomly encouraged managers to make scheduling more predictable and stable, productivity went up by 5 percent and sales increased by 7 percent.

Lambert and Deutsch say that changing the model at retail and restaurant chains will take both an internal change within companies as well as government enforcement. But government enforcement agencies often rely on workers at companies to file complaints about violations, they said, putting a big burden on workers who are often already in precarious situations.

In New York City, in spite of the risk of retaliation from their employer, some fast food workers have boldly stepped forward to report on companies that have failed to comply with the 2017 fair workweek law.

Jeremy Espinal, a 20-year-old college student in NYC, told me that he and his coworkers experienced unpredictable and last-minute schedules at Chipotle (without any compensation for scheduling changes, as the law requires) since he started working there in early 2018. Espinal described how unpredictable schedules made it difficult for him to continue with his college degree, and made life difficult for his coworkers with children and additional part-time jobs.

In May 2019, with the support of a local union 32BJ SEIU (which also supported workers in pushing for the $15 per hour minimum wage and the fair workweek law itself), Espinal led a group of 20 of his coworkers to sign a petition which they delivered to a manager at their store.

Chipotle workers at over a dozen restaurants also lodged complaints with the city, which filed a lawsuit against the company in September. Now the city is seeking $1 million in restitution to workers at five Chipotle locations, plus fines (and another 11 Chipotle branches in NYC are still under investigation).

Laurie Schalow, Chipotle’s chief reputation officer, commented by email: “With respect to the Fair Workweek Law, Chipotle has been working cooperatively with the city to ensure we have systems and processes in place to comply with the law, so we believe the filing of charges was unnecessary. Regardless, we will continue to cooperate with the city and we are addressing any prior noncompliance concerns.”

As more and more cities adopt these laws, the prospects for workers certainly seem to be improving. But as Espinal notes, the fight isn’t over. “I’m going to keep organizing,” he said. Until companies treat their workers with respect, and follow the law, he said, “It’s a fight that has to be fought.”

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Author: Stephanie Wykstra

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