As the advent of the gig economy has highlighted the precarious nature of many non-salaried workers’ incomes, predictable scheduling has practically eclipsed the minimum wage as the labor rights cause of the day, both in the US and in other countries. In the past year, we’ve seen cities like Seattle and New York pass “secure scheduling” laws mandating guaranteed hours for certain classes of hourly employees, and Oregon is on its way to becoming the first state with such legislation.
That many Americans work unpredictable hours from week to week is not in dispute, but opponents of these mandates argue that they impose unreasonable burdens on employers in industries like retail and food service where turnover is high and demand is naturally unpredictable. There is also some debate over just how big a problem variable scheduling is. A recent Gallup survey, for example, finds that among the one in six US employees who are paid hourly and say their hours vary each week, 67 percent say their variable schedules are not causing them financial hardship:
These results are based on interviews conducted Aug. 23-Sept. 4 with 528 hourly workers who say the number of hours they work each week varies. Thirty-seven percent of all hourly workers — equivalent to 18% of all U.S. workers — say the number of hours they work varies from week to week, while the rest say their hours are fixed.
Recently published research by sociologists at Cambridge and Oxford paints a dismal picture of the UK’s flexible workforce. Flexible contracts, which give hourly employees a minimal number of guaranteed hours (or none at all, in the case of zero-hour contracts), damage these workers’ home lives and mental health, and force them to beg their bosses for schedule changes or more hours to make ends meet, according to the Independent:
Dr Alex Wood, of Oxford University, embedded himself as a shelf-stacker at a UK supermarket while formerly a researcher at Cambridge’s Department of Sociology, where he experienced first-hand the “toxic” interactions between shop management and workers, witnessing employees “begging” their bosses for additional hours.
“People are put on contracts that are one or two or four hours a week, and it’s not possible for them to survive on this. But often they are hired under the assumption that they will get more hours than that,” he told The Independent. “It creates this situation whereby in order to be able to survive, people have to constantly go up to their manager and ask them for more hours, saying they can’t make ends meet without more hours, asking: ‘Please can you help me.’ Then if and when the manager helps the workers out, it means they feel very indebted to their manager to work hard.”
The Irish government’s Department of Jobs has drafted legislation that would strictly regulate the use of zero-hour contracts, in which employers are not obliged to guarantee employees any work in a given pay period, and has referred the legislation to the Attorney General for priority drafting, Patrick Walshe, an attorney with Philip Lee in Dublin, wrote at SHRM last week. While the proposed legislation has not yet been published, Walshe points to several changes it is likely to make:
- Employers would be obliged to provide certain information to new employees, including the expected contract duration, the manner in which pay will be calculated and what the employer reasonably expects the normal extent of the working day/week to be. It would be an offense if the employer fails to comply. Obviously, the requirement to provide information in relation to the normal extent of the work is to give an employee key information early on.
- The legislation would propose a new minimum floor payment of three times the national minimum wage when an employee is called into work but is not actually provided with the hours expected. This is clearly designed to discourage employers from summoning employees to work for short periods.
- Perhaps most fundamental of all, the legislation would create a new cause of action where employees could argue that their actual hours worked are not accurately reflected in their contracted hours. If there is a difference between what the contract says and what happens in practice, the employee could seek to be placed in a band of hours that is closer to the hours they actually worked.
The intention of the legislation, Walshe speculates, may be to eliminate zero-hour contracts entirely, or with very few exceptions.
The campaign to crack down on variable or on-call scheduling is emerging as a central issue for labor activists in the US today, second only to the minimum wage. Oregon is currently on track to become the first state to introduce regulations obligating most employers to provide predictable schedules to their hourly employees. A bill mandating advance notice of scheduling passed the state Senate last year and is returning to the House for a final vote, the Statesman Journal reported this week:
The bill’s provisions would apply to retail, food service and hospitality employers with at least 500 workers worldwide. That’s up from 100 statewide in the original bill. Individually owned franchises would not be covered. If the bill passes, beginning July 1, 2018, those employers would have to provide workers with an estimated schedule seven days before the first day of that week’s work. That’s down from 14 days in the original bill. The advance notice requirement would increase to 14 days on July 1, 2020. Enforcement would begin Jan. 1, 2019.
The bill also requires employers to provide extra pay to workers who have fewer than 10 hours off between shifts, allows workers to turn down extra shifts, and allows employers to maintain standby list of employees who are willing to be called into work on short notice. And it prohibits cities and counties from setting their own scheduling regulations.
New York City Mayor Bill de Blasio signed a suite of bills into law on Tuesday that will require fast food and retail employers in the city to provide employees with more predictable work schedules, Reuters reports:
A key component of the package is a requirement that fast food restaurants schedule their workers at least two weeks in advance or pay extra for shift changes. … The legislation also ensures that fast food workers have breaks of at least 11 hours between shifts and are given the option of working additional hours before their employers hire extra workers. …
The New York City package, which takes effect in six months, also would ban unpaid on-call scheduling of retail employees and would enable fast-food workers to contribute voluntarily to worker advocacy groups or other non-profit groups, but not unions, through payroll deduction.
With this legislation, New York becomes the third (and by far the largest) US city to take aim at the controversial practice of on-call scheduling, which San Francisco targeted in its 2014 “retail workers’ bill of rights” and Seattle banned in a law its City Council passed last year. Another such law is scheduled to take effect July 1 in the Bay Area city of Emeryville, CA, and similar scheduling bills have been introduced at the state level in Connecticut, Minnesota, North Carolina, New Jersey, New York, Oregon and Texas.
According to the New York Daily News, however, New York State Governor Andrew Cuomo is working on a series of regulations that would preempt the city’s and offer employees somewhat weaker protections, albeit more than they currently enjoy: