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Washington Post - 05-08-2015  -  If there’s one labor issue that’s come to the forefront of political agendas over the past few years, it’s the minimum wage: Cities and states around the country are taking action to boost worker pay, as federal efforts seem doomed to fail.

But a new wave of reform is already in the works. Instead of how much you earn, it addresses when you work -- pushing back against the longstanding corporate trend toward timing shifts exactly when labor is needed, sometimes in tiny increments, or at the very last minute. That practice, nicknamed “just-in-time” scheduling, can wreak havoc on the lives of workers who can’t plan around work obligations that might pop up at any time.

Right now, community groups and unions in Washington D.C. are formulating a bill that will address the problem of schedules that can be both shifting and inflexible. The legislation hasn’t been hammered out yet, but the labor-backed group Jobs with Justice says it will likely include a requirement that employers provide workers with notice of their schedules a few weeks ahead of time, and that additional hours go to existing employees, rather than spreading them across a large workforce.

“The one thing we’re finding overwhelmingly is that people aren’t getting enough hours to make ends meet,” says Ari Schwartz, a campaign organizer at D.C. Jobs with Justice, which is now tabulating the results of a survey of hundreds of hourly workers in the city on scheduling issues. “People aren’t getting their schedules with enough time to plan childcare and the rest of the things in their lives.”

When a proposal reaches the D.C. Council in the coming months, Washington won’t be the first: Following the passage of landmark legislation in San Francisco, bills have been offered in Indiana, Maryland, Massachusetts, Minnesota, Illinois, Connecticut, California, New York, Michigan and Oregon. Along with new proposals to expand paid sick day legislation, they are a bid to give employees more control over how they spend their time.

“These scheduling reforms are getting really popular, because it makes no sense that for example you’re required to be available to work by your employer and you’re not picked for that time,” says Tsedeye Gebreselassie, a senior staff attorney at the National Employment Law Project. “People who don’t suffer these abuses already understand what it’s like to juggle work and family, so people really identify with that as being a problem.” 

Carrots and sticks

Twenty years ago, schedules weren’t as much of a problem. Working in retail, especially, tended to be a solid 9 to 5 job.

But then retail hours grew longer. And then came computerized scheduling, which allowed employers to best fit staffing to demand. Here’s what that looks like in practice: Handing out schedules based on what times of day or the month you expect the most business, splitting up hours across a large workforce that’s available on a moment’s notice and sometimes sending people home if traffic is slow.

That helps companies optimize their labor costs, but it wreaks havoc on the lives of low-wage workers, who don’t know how much they’re going to make from week to week, and often can’t schedule anything else around work.

One worker, who spoke on the condition of anonymity because she is still employed there, has worked in the hot food prep section of the Whole Foods at 14th and P streets in Washington for 12 years. She liked it; the pay wasn’t bad, and the people were friendly. She worked consistently from 6 a.m. to 2 p.m., and took a second job as a nanny in the afternoons, which added around $300 a week to her income — more money to send home to her father in El Salvador, and to support her daughter in college in Tennessee.

But then, a new manager cut back hours; some people left and weren’t replaced. The schedule posted on the wall started to shift the worker’s days off, or tell her to come in from 10 a.m. to 4 p.m. instead. Usually she got a week’s notice, but once in a while she’d come to work and the schedule had already changed, so she’d have to go back home. After that happened on too many days, she had to drop the afternoon job. So once again, she was just squeaking by.

“She would come and say ‘I really need you to cover this shift,’ and it is what it is,” the worker says in Spanish, through a translator. “Lots of us have lost lots of jobs.”

It’s been better over the past few months, she says. And that’s not by accident: As public complaints surfaced about Whole Foods’ scheduling practices, the company rolled out a new system that allows employees to see their schedules for two weeks in advance and prevents managers from changing them at the last minute or scheduling “clopenings”-- both closing the store and opening it in the morning -- without an employee’s consent. The policy has been in place nationwide since early April, spokesman Michael Silverman says.

Whole Foods isn’t alone. Walmart has also introduced a system of “open shifts,” which allows workers to pick their own hours. Starbucks curbed some of its practices in the wake of a New York Times article last year that described their effect on one barista. The Gap is working with the Center for WorkLife Law at Hastings College of Law in San Francisco to set up pilot projects around the country that would measure the impact of giving employees stable schedules and more hours. Many companies haven’t taken into account how much their scheduling practices are actually costing them in the form of employee turnover, professor Joan Williams says.

“If you don’t count that cost, it disappears. The idea is to generate the kind of rigorous data that will be needed to persuade people to change their financial models."

— Professor Joan Williams, Hastings College of Law

“If you don’t count that cost, it disappears. The idea is to generate the kind of rigorous data that will be needed to persuade people to change their financial models," says Williams. "Our hypothesis is that if you provide people with more stable schedules, you’ll see lower turnover [and] absenteeism and higher worker engagement.”

In time, the business case may grow clear enough that more companies move toward stable schedules on their own. But Williams says legislative efforts are needed as well: A recent national survey found that 41 percent of early-career, hourly workers get their schedules less than a week in advance. In a survey of retail and restaurant workers in Washington, Jobs with Justice found that employers like Forever21 and Chipotle are among the worst offenders. (Forever21 did not respond to a request for comment. Chipotle says it publishes schedules four days in advance, with shifts lasting seven hours on average.)

And now, there’s legislation to benchmark against. Last year, San Francisco became the first jurisdiction to pass comprehensive scheduling reform, with a set of companion bills that require “formula retailers” (i.e., large chains) to give workers two weeks notice of their schedules, pay workers for the shifts when they’re on call and give hours to current employees instead of hiring more, among other provisions. The law went into effect in January, but won’t be enforced until July.

Meanwhile, scheduling legislation is in the works around the country. National groups like the Center for Popular Democracy and the National Womens Law Center are helping to build coalitions where scheduling reforms could prove politically palatable, in places like New York — where the union-backed Retail Action Project has been advocating for “just hours” for years — and Minnesota, where the AFL-CIO-affiliated Working America has been building support among non-union members for measures that would benefit all workers.

Scheduling legislation even exists on the federal level. A federal bill introduced in Congress last summer would require employers to make schedule accommodations for health or childcare needs, unless there is a “bona fide business reason” for denying it. Yet another bill, proposed last month, would prevent employers from firing workers for requesting a schedule change.

But it hasn’t been smooth sailing for the scheduling reform movement. A Maryland bill failed this year, in the face of employer opposition. And though there isn’t even a bill yet in Washington, businesses are voicing skepticism.

“Any time you alter how employers hire, schedule or retain their workforce, if that flexibility makes DC less attractive to businesses, than I’m concerned about that."

— Harry Wingo, president of the D.C. Chamber of Commerce

“Any time you alter how employers hire, schedule or retain their workforce, if that flexibility makes DC less attractive to businesses, than I’m concerned about that,” said Harry Wingo, president of the D.C. Chamber of Commerce. “The D.C. chamber is concerned about any restrictions on free enterprise.”

It’s perhaps more concerning to employers than even raising the minimum wage: That’s just extra cost. Scheduling, by contrast, impacts the very core of how they’ve learned to do business.

Making it real

Laws, of course, are only as good as their enforcers. And scheduling laws, with their far-reaching impact, could be particularly difficult to follow up on.

Just ask unions, which already have many of the proposed scheduling rules in their contracts. Making sure employers stick to them is a big job, even though union dues pay for far more inspectors — in the form of business agents and shop stewards — than city and state governments ever will.

“The union has this exact set of provisions in its contracts, and they are extremely important for making sure that if you have the seniority you can get the fullest work week possible,” says John Boardman, president of UNITE-HERE Local 25, which represents 6,500 mostly hotel workers in the D.C. area. “But it also takes a very, very strong enforcement mechanism in order to make these provisions of the contract viable and living.”

Jobs with Justice already knows this. A few years ago, D.C. passed laws requiring employers to pay for a minimum of 4 hours in a shift, even if a worker was sent home early, and to pay an extra hour’s worth of wages for every “split shift” (with a long break in the middle) that an employee works. In its survey, Jobs with Justice found that workers were sent home early and asked to work split shifts just as much as they were in 2010, when another survey was done, suggesting the laws hadn’t had much effect.

That’s why they’re hoping the city will put more resources into enforcement, in the form of inspectors and people to process claims. But it’s also going to have to involve a massive education campaign to make workers aware they even have these new rights.

"It is easier to enforce these things when you have a union contract and a grievance procedure, and a shop steward and union infrastructure to back that up,” says Schwartz. “But we can’t keep relying on that as our only model. Because there’s so many workers in the growing retail and restaurant sectors that need those protections, too.”

Source: The Washington Post