CPD IN THE NEWS

Dec. 1 — More than a dozen states and cities in the past year considered legislation to require retail stores and restaurants to provide extra pay to employees for last-minute work schedule changes. Thus far only a handful of cities have enacted such measures into law.

These predictive or predictable scheduling proposals, also called fair workweek measures, were “very popular” in 2016, John S. Hong, an employment law attorney with Littler Mendelson in San Francisco, recently told Bloomberg BNA.

“But they died on the vine in a lot of states,” Hong said.

In addition to providing “predictability” pay, these measures would require employers to notify workers about their schedules a certain number of weeks in advance under predictive scheduling proposals. They also include “access to hours” provisions that require employers to offer newly available hours to part-time staff before hiring new workers or using contractors or staffing agencies.

Worker advocacy groups praise these measures as providing secure, clear and stable scheduling for workers. But employers counter that these requirements remove the flexibility needed for retailers and restaurants to operate their businesses effectively.

Predictive Scheduling Is ‘The Next Fight.’

Predictive scheduling bills this year were withdrawn or never went to a vote in California, Indiana, Kansas, Maryland, Michigan, New York and Rhode Island.

Similar bills or provisions died in Connecticut, Illinois, Maine and Oregon in 2015.

Washington, D.C., also tabled a predictive scheduling proposal this year, while a court rejected a ballot initiative on the issue in Cleveland, Hong said.

Still, employee advocates said the number of jurisdictions that have considered scheduling laws is encouraging.

Introduction of the bills initiates public conversations among workers, employers and policy makers about the issue, they said.

“They begin the legislative process, which can take multiple years,” Elianne Farhat, deputy campaign director of the Center for Popular Democracy’s Fair Workweek Initiative.

Predictive scheduling is “the next fight,” following the success of the “Fight for $15" minimum wage initiative, Farhat told Bloomberg BNA Nov. 30.

“The issue will continue to pick up steam and move forward,” she said.

Two Cities Join San Francisco

Two cities this year enacted predictive scheduling laws. Seattle and Emeryville, Calif., followed in the footsteps of San Francisco, which passed the nation’s first ever predictive scheduling law in late 2014

Rules implementing San Francisco’s ordinance went into effect in March 2016. They apply to businesses that have 20 or more employees in the city and at least 40 retail sales establishments worldwide.

Seattle and Emeryville’s laws take effect in 2017.

Seattle’s law applies to retail and quick or limited food-service establishments with more than 500 employees worldwide and full-service restaurants with more than 500 employees and 40 full-service locations worldwide.

Emeryville’s law applies to businesses with more than 55 employees worldwide.

New Hampshire, San Jose Also Pass Laws

On the predictive scheduling periphery are San Jose, Calif., and New Hampshire, which passed narrower laws in the past year.

San Jose voters approved a ballot initiative in November that focused only on access to hour protections for part-time employees, meaning they would be given extra hours prior to hiring others.

New Hampshire in June didn’t quite enact a predictive scheduling law. Instead, it required employers to consider employee requests for flexible working arrangements and prohibited employers from retaliating against workers who made those requests.

The New Hampshire law is “minimal, but still important,” Liz Ben-Ishai, senior policy analyst at the Center for Law and Social Policy in Washington, D.C., told Bloomberg BNA.

Farhat added that Washington, D.C. passed a law guaranteeing a 30-hour minimum workweek for building service workers, although it tabled its broader predictive scheduling law.

Depending on the needs of a particular locality, some cities or states will pass broader scheduling laws, while others pass narrower provisions.

“They’re all part of updating our work hour standards,” Farhat said.

Looking Ahead to 2017

Predictive scheduling bills are pending in New Jersey and Massachusetts, Hong said. But the latter “may die for lack of action” before the end of the year.

A measure also is pending in Minnesota, according to CLASP data, but it may share the same fate as the Massachusetts bill.

Asked if the issue of predictive scheduling will continue to crop up in 2017, Hong said more cities and states may consider such measures. But “ultimately they may die on the vine,” he said.

Ben-Ishai provided a more optimistic outlook for predictive scheduling.

“I think it’s a promising area moving forward,” she said.

State and local lawmakers in Oregon could consider predictive scheduling measures next year, she said. In 2015, a state predictive scheduling bill died in committee, but legislators preempted scheduling ordinances at the local level only until 2017.

Portland, Ore., already has passed a resolution to study and eventually establish workweek principles for city contractors, Farhat said.

New York Mayor Bill de Blasio in September announced that the city is developing legislation that would require predictable work schedules for about 65,000 hourly fast-food employees in the city.

Predictive scheduling is expected to come back in Washington, D.C. next year “in a very serious way,” Farhat said. And California may onceagain consider a statewide measure, she added.

Don’t Forget About State Preemption Laws

Hong observed that several states have preemption laws that prevent cities, towns and counties from passing workplace laws that conflict with state or federal law.

About 22 states so far have expressly preempted localities from adopting such laws, like those that would raise minimum wages, provide leave benefits or expand workplace anti-discrimination protections. Most of these state have enacted the laws within the last five years., Lawmakers in about 11 other states have introduced similar bills so far in 2016.

At least five states—Alabama, Arizona, Indiana, Kansas and Michigan—have laws that could preempt local predictive scheduling laws, Hong said.

Preemption laws don’t necessarily indicate that legislatures are against fair scheduling, he said. “They don’t want local governments doing something potentially inconsistent with state law,” Hong said.

But Ben-Ishai contended that preemption laws can be a strategy taken by lawmakers who “are not friendly to workers’ rights.”

Federal Predictive Scheduling Law?

A federal predictive scheduling bill known as the Schedules That Work Act ( H.R. 3071, S. 1772) was introduced in both houses of Congress in July 2015.

The identical bills were sponsored by democrats and have remained stalled in committee. They are unlikely to be considered for a vote before the year ends.

Ben-Ishai said she expects the bills’ sponsors, Sen. Elizabeth Warren (D-Mass.) and Rep. Rosa DeLauro (D-Conn.), will reintroduce the legislation in the next Congress.

But given Republican control of both Congress and the White House, Ben-Ishai said, “I don’t think we’re super optimistic about it moving forward.”

Predictive scheduling will have a better chance at seeing “more movement” at the state and local levels, she said.

By: Jay-Anne B. Casuga

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New York Times - November 14, 2014, by Binyamin Appelbaum - Jean Andre traveled from Queens to the Federal Reserve Board’s stately headquarters here on Friday to tell the people who make monetary policy that he needs their help. He cannot find regular work on film and photo shoots. The jobs he does find pay less.

The Fed’s chairwoman, Janet L. Yellen, agreed to meet with about 30 workers and activists, including Mr. Andre, in a gesture of concern for the plight of Americans searching for work and struggling to make a living.

For one hour on Friday, the workers sat in the Fed’s ornate conference room and told their stories to Ms. Yellen and other Fed officials, including three other members of the Fed’s board of governors — Stanley Fischer, the vice chairman; Lael Brainard; and Jerome H. Powell — who listened and asked questions.

“The Federal Reserve is too important of an institution to be insulated from the voices and perspectives of working families,” said Ady Barkan, a lawyer with the Center for Popular Democracy, an advocacy group based in Brooklyn that orchestrated the meeting. “We think that the Fed needs to listen more and be more responsive, and we’re very grateful for this first opportunity.”

The meeting was closed to the media. The workers described what they said, and the Fed declined to comment, citing a policy of silence about private meetings.

Mr. Barkan’s group is campaigning for the Fed to continue its stimulus campaign, citing the high level of unemployment, particularly in minority communities, and the slow pace of wage growth as evidence the economy still needs help. The group argued the Fed could help to drive up wages by keeping interest rates low.

Mr. Andre, 48, said two jobs were canceled this week. And instead of $400 a day for a print shoot, he said he now made $250 or $300.

“They tell me if I don’t take the job there’s lots of other people willing to work,” he said. “So what can I do? I have a family. I have to take it.”

Josh Bivens, an economist at the Economic Policy Institute, a liberal research group, said monetary policy would be “the single most important determinant of wage growth,” and that he was glad to see workers recognize the Fed’s importance.

A conservative group, American Principles in Action, criticized the meeting as “highly political” and inappropriate. It said it would seek a similar meeting to share its view that the Fed’s stimulus campaign is damaging the economy.

The labor and community groups at the meeting wore green T-shirts that said “What Recovery?” on the front, with a chart illustrating meager wage gains on the back. They are also pressing Ms. Yellen to change the way the Fed chooses the presidents of its regional banks.

The Federal Reserve Bank of Dallas said Thursday that its president, Richard W. Fisher, would step down March 19. Charles I. Plosser, president of the Federal Reserve Bank of Philadelphia, plans to retire at the beginning of March.

The Philadelphia Fed said shortly before the meeting on Friday that it had created an email address for inquiries about its presidential search process. It described the account, which will be maintained by the company conducting the search, Korn Ferry, as part of its commitment to conduct a “broad search.”

“I expect the same thing from Dallas,” said Connie Paredes, 42, who traveled to the meeting as a representative of the Texas Organizing Project, speaking at a rally outside the Fed before the group went inside. “We expect to be included in the process.”

Organizers from Dallas and Philadelphia said they would press for similar meetings with the presidents and board of the local Fed banks.

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Take a moment and imagine that you are on a train — let’s say a train serving wine as you traverse through picturesque Napa Valley. You are with a group of your peers. You are adults and enjoying your time of fellowship. But because of a perceived notion that you are not fit for that environment you are unceremoniously removed from the train. Can you imagine the indignity of this encounter? Think about the anxiety this situation may cause. Think about the disrespect that you would feel.

Believe it or not, this is the reality for a large portion of the African American community. According to a 2015 Gallup poll, more African American adults feel discriminated against while shopping than doing anything. This sentiment includes encounters with the police.

A report released by the Center for Popular Democracy confirms these perceptions felt by African Americans. The report found that African American consumers are seven times more likely to be targeted as potential thieves as are white customers.

However, research on shoplifting trends in retail stores found no differences by race or ethnicity. Some research even suggests that African Americans are less likely to engage in shoplifting than are other groups. That means African Americans are being overly targeted by retailers while the real criminals get away.

This form of discrimination is not new. It is an adaptation of previous forms of discrimination transformed anew due to significant gains in civil rights protections. This form of discrimination has a name: consumer racial profiling.

Consumer racial profiling is particularly troublesome because it disproportionately affects African American women, a consumer group who engages in the retail sector at significantly higher rates than men.

The image that I asked you to conjure was not of my own making. It actually happened to a group of Black women. Notwithstanding the fact these train riders reached a final settlement just last month, California and other states can do a great deal more to end the consumer racial profiling that plagues retail environments.

Specifically in California, a piece of legislation I have authored (AB 2707—the Stop Consumer Racial Profiling Act of 2016) will amend our state’s civil rights statute to include the definition of this demeaning practice and require the state’s civil rights watchdog to investigate reported incidences of the practice. It is my hope that this legislation would pass a vote of my colleagues and be signed by the Governor. But more important than the passage of a bill is the transformation of behaviors by retailers that violate the civil and human rights of African American consumers.

Corporate loss prevention schemes must be reformed, executives, managers and rank-and-file employees must be awakened, and people of goodwill must demand that the targeting of consumers by racial characteristic is factually and morally wrong. It must end.

A new civil rights consciousness has gripped a great deal of the country. Maybe we can address some of the challenges that still occur on the basis of race by turning the tide against consumer racial profiling and letting it be a thing of the past.

By Sebastian Ridley-Thomas

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Charter Schools are defined by their freedom from regulation and oversight, but that freedom has been so regularly abused by unscrupulous operators that it seems the U.S. Department of Education is finally deciding to crack down, under pressure in this case from Ohio’s U.S. Senator Sherrod Brown.

Three months ago, on June 20, 2016, Senator Brown wrote a letter to John King, now U.S. Secretary of Education, demanding increased oversight of a large grant—$71 million—the federal Department of Education made to Ohio on September 28, 2015 to expand charter schools.  The grant application had been written by David Hansen, who, by September, had already been fired by the Ohio Department of Education for hiding the abysmal academic record of the state’s so-called “dropout recovery schools” and omitting their scores from a system he was creating as the Ohio Department prepared to begin holding charter schools more accountable. Hansen had also bragged in his federal grant application that Ohio had already begun more aggressively regulating charters. After the U.S. Department of Education awarded Ohio the $71 million grant at the end of September 2015, however, it was pointed out that the Ohio legislature had not yet passed the regulations for which Hansen (in July) had given the state credit. (The Ohio Legislature later adopted the most basic and minimal charter school oversight when it passed Ohio House Bill 2 on October 7, 2015).

When Ohio Senator Brown wrote to U.S. Secretary John King in June, 2016, the $71 million Ohio grant had been put on hold for months, as the U.S. Department of Education investigated Ohio’s dealings with charter schools. In his June 20 letter, Senator Brown wrote:

“In your November 2015 response letter to the members of the Ohio Congressional delegation, you outlined a number of steps ED has taken and will continue to take to verify the accuracy and completeness of ODE’s grant application. I appreciate these steps, but more must be done to provide order to the state’s chaotic charter school sector. In light of this report, I ask that you examine the performance of Ohio charter schools who have received CSP (federal Charter Schools Program) grants to determine whether grant recipients are failing or closing at a higher rate than those in other states and how the academic performance of CSP grant recipients in Ohio compares to CSP grant recipients nationwide. I further ask that when Ohio has satisfied all necessary conditions for this grant money to be released that you appoint a special monitor to review every expenditure made pursuant to this grant in order to ensure that all funds are being spent for their intended purpose. Ohio’s current lack of oversight wastes taxpayer’s money and undermines the ostensible goal of charters: providing more high-quality educational opportunities for children. There exists a pattern of waste, fraud, and abuse that is far too common and requires extra scrutiny.”

Last Wednesday, September 14, 2016, the U.S. Department of Education finally released the $71 million grant, but, as Patrick O’Donnell reports for the Plain Dealer, there are now many conditions:

“In a letter to the Ohio Department of Education today, the grant was declared ‘high risk’ because of the poor academic performance of the state’s charters and the struggles the state has had in implementing portions of House Bill 2, the state’s charter reform bill passed last fall by the state legislature… The letter states: ‘As part of this high-risk designation, we are imposing certain High-Risk Special Conditions on ODE’s CSP (Charter Schools Program) SEA (State Education Agency) grant that will help ODE and the Department more clearly determine ODE’s ongoing compliance with applicable requirements’ so that it will be more transparent and so that any issues can be identified and fixed quickly.”

Here are the conditions as reported by O’Donnell:

    •    “(T)he state cannot give out grants to schools as it has in the past. It must have prior approval from the U.S. Department of Education before transferring any money.

    •    “The department must evaluate dropout recovery schools better.

    •    “The state must report its progress four times each year.

    •    “ODE must hire an independent monitor of the grant program.

    •    “The state must create a Grant Implementation Advisory Committee.

    •    “And it must do demanding ratings of the oversight agencies known as ‘sponsors’ in Ohio, but as ‘authorizers’ in most other states.”

Ohio’s problems with the controversial $71 million Charter Schools Program grant are not the first time anyone has noticed the federal Department of Education’s failure to oversee the Charter Schools Program. A year ago in June, 2015, the Alliance to Reclaim Our Schools—a coalition of national organizations including the American Federation of Teachers, Alliance for Educational Justice, Annenberg Institute for School Reform at Brown University, Center for Popular Democracy, Gamaliel, Journey for Justice Alliance, National Education Association, National Opportunity to Learn Campaign, and Service Employees International Union—sent a letter to then-Secretary of Education Arne Duncan complaining that while the Department had granted $1.7 billion to states for expansion of charter schools since 2009, the Department of Education’s own Inspector General had been raising alarms about the Department’s own lack of any kind of quality control.

The Alliance’s letter to Arne Duncan cited formal audits from 2010 and 2012 in which the Department of Education’s own Office of Inspector General (OIG), “raised concerns about transparency and competency in the administration of the federal Charter Schools Program.”  The OIG’s 2012 audit, the members of the Alliance explain, discovered that the Department of Education’s Office of Innovation and Improvement, which administers the Charter Schools Program, and the State Education Agencies, which disburse the majority of the federal funds, are ill equipped to keep adequate records or put in place even minimal oversight. The State Education Agencies that lack capacity to manage the programs are the 50 state departments of education.

In the June 2015 letter to Arne Duncan, the Alliance to Reclaim Our Schools enumerates the problems discovered by the Department of Education’s own Office of Inspector General: that the Office of Innovation and Improvement (OII) did not maintain records of the charter schools funded through grants to states, that OII “lacked internal controls and adequate training in fiscal and program monitoring,” that none of the three states selected as samples for investigation by the Office of Inspector General—Arizona, California, and Florida—sufficiently monitored the charter schools funded through the Department of Education’s State Education Agency grants, that 26 charter schools in these three states were shown by the Office of Inspector General to have closed after being awarded $7 million, and that even when the schools closed, nobody tracked “what happened to assets that had been purchased with federal funds.”

Thank you, Senator Sherrod Brown for doggedly demanding that the U.S. Department of Education improve oversight of the federal Charter Schools Program. Please keep on keeping on.

 By Jan Resseger

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