On Friday afternoon, New York Attorney General Eric Schneiderman sent a letter to 13 large retailers, including Gap, Target, and J.C. Penney, asking them about their scheduling practices. In particular, the letter alleged that those retailers had been giving their workers little notice about shift changes.
Such practices have become common as employers have sought ways to cut costs. But that tactic makes it nearly impossible for many low-income workers to plan their lives. Unchecked, it becomes a way for employers to exploit their workers—and policymakers need to put a stop to it.
Just-in-time scheduling, as the practice is also known, allows employers to efficiently allocate resources. Scheduling software offers real-time analysis for staffing needs. When customers flock to a store, managers bring in on-call workers. When business is slow, managers don't call those workers in—or they turn them away. In some cases, these workers will have already commuted to work, paid for child care, and arranged their lives around a shift that evaporates, leaving them without a wage and no recompense for their troubles. The unpredictable schedules interfere with such basic daily activities as grocery shopping, doctor’s appointments, and looking for a better job.
Last week, the left-leaning Economic Policy Institute released a report on irregular scheduling. It found that 17 percent of the U.S. workforce has “unstable work shift schedules” of some kind, whether due to on-call work schedules or rotating shifts. The report suggests the actual percentage may be higher. Low-income workers bear the brunt of such schedules. Workers with irregular schedules are more likely to experience work-family conflicts and have higher levels of work stress.
Under New York law, workers who are called to report for a shift must be paid for four hours of work, even if they are sent home. Schneiderman believes that the 13 retailers may be violating that law. Whether or not his letter and further investigation lead to evidence of misconduct, it will likely deter retailers from breaking the law going forward. That’s an important step toward giving workers more control over their lives.
Many of us take for granted the freedom to come in late when we have a morning dentist's appointment or to leave an hour early to catch an evening flight. Millions of workers don’t have that flexibility; their shifts start and end at firm times. While such a rigid schedule may frustrate workers, it is, at the very least, predictable. Just-in-time scheduling deprives workers of even that benefit.
And that benefit is highly valued. Many workers in the “on-demand” economy, for instance, cite flexible scheduling as a prime factor in their job satisfaction. Workers at companies like Uber, Lyft, and TaskRabbit set their own schedules—they can work whenever they want, for as long as they want. In return for that control, they sacrifice a number of workplace protections. As contractors rather than employees, they're not entitled to minimum wage or overtime protections. Companies don't cover the cost of gas and maintenance, let along worker's comp, retirement plans, or health benefits.1
Yet, when you talk to workers in the on-demand economy, they often are happy with their employer and, in particular, rave about flexible scheduling. “If I don’t feel like driving, I won’t drive,” Dejan Terziev, a 31-year-old Uber driver who lives in Virginia, told me. “This is my third month and I’m very happy,” Noor Akbari, also an Uber driver, told me recently. “Because the important thing is I’m by myself. There’s no boss to tell me go left, go right, why you late, why you early, why you leaving early. I’m my own boss.” In December, the Benenson Strategy Group surveyed 601 Uber drivers and found that 74 percent of them had greater control over their schedule since starting with Uber. Sixty-three percent of drivers said greater flexibility was a main reason they worked for Uber.
In the absence of such flexibility, workers should at least get to settle for predictability. Conservatives may dismiss such protections as unnecessary. An improving economy, they say, gives workers leverage to demand better working conditions. And that's true. Recently, for instance, Wal-Mart, McDonald’s, and other companies raised their workers’ wages, in part due to the tightening labor market. But while companies have significant discretion in setting their workers’ wages, the minimum wage also exists to ensure that workers are properly compensated for their work. Similar protections for worker schedules are needed, especially since tight labor markets have been so prevalent in recent years.
In January, an ordinance approved by the San Francisco Board of Supervisors took effect that requires certain businesses to post worker schedules at least two weeks in advance. It also sets strict compensation amounts for schedule changes. Employers who make a schedule change within 24 hours of the shift have to pay two to four hours of pay at the employee’s regular rate. The ordinance’s goal is to give workers more predictability in their hours and their earnings.
Will this increase costs for San Francisco businesses? Probably. But that doesn’t discredit the measure. Minimum wage and overtime laws raise labor costs for companies. Yet those laws are necessary to protect workers from exploitation, especially as labor unions continue to lose power and have less ability to fight unfair working conditions. The same goes for scheduling regulations. No matter the state of the economy, workers should have a relative understanding of their future work schedules. They shouldn’t show up to work and find they won’t earn a wage that day.
Congressional Democrats want to fix this on the national level but are unlikely to succeed. They have introduced a bill, the Schedules that Work Act, that would, among other things, give workers greater predictability in their schedules and grant them stronger protections for asking their employer for flexible scheduling. Since Republicans control the House and Senate, the bill is dead-on-arrival in Congress. That means it's up to states and cities to provide stronger protections for workers, just as they are doing with state minimum wage laws.
Still, far too many states do not have adequate regulations surrounding worker schedules. New York is just one of eight states, along with the District of Columbia and Puerto Rico, to require employers to pay their employees if they make last-minute changes to their schedules.
“Just to get even one hour paid for if someone is sent home before their shift time ends or if they show and there's no work at all, which I think is the most common complaint, that would get employers to reconsider those kind of practices,” said Lonnie Golden, a professor of economics and labor-employment relations at Penn State University and the author of the EPI report.
But until other attorneys general have the same authority as Schneiderman has to investigate retailers for breaking the law on worker schedules, employers have little to fear.
There's debate over whether "on-demand" workers should be classified as employees. For now, Uber and other companies can cut costs by classifying them as independent contractors.