“This is going to be a difficult conversation,” said Council member Lisa Herbold at the end of today’s hearing. That, unfortunately, is an understatement.
Herbold’s Civil Rights, Utilities, Economic Development and Arts Committee held a hearing this morning, the second one in a series meant to allow for development of legislation to address issues around secure scheduling. Herbold is cooperating closely with Council member Lorena Gonzalez and her Gender Equity, Safe Communities and New Americans Committee on this topic.
“Secure scheduling” refers to attempts to mitigate the effects of recent changes in scheduling practices on hourly workers, mainly in the restaurant, retail, hospitality and janitorial industries. Those practices, often driven by the use of “predictive scheduling” software systems that allow managers to create more granular worker schedules to match their peak hours, usually mean that workers get less advance notice of their upcoming schedule, have wildly fluctuating hours from day to day or week to week, and often work fewer hours. For the workers, this creates all sorts of problems, from less financial security to difficulty scheduling childcare (over 40% of restaurant workers are mothers).
Herbold and Gonzalez decided to innovate and try a different approach in an attempt to be more inclusive across widely divergent stakeholders: the Mayor’s Office is holding a series of roundtable discussions to discuss various aspects and issues around secure scheduling, and after each discussion stakeholders will brief Herbold’s or Gonzalez’s committee on the conversation and salient points that were raised. According to their draft schedule, several of these conversations will happen over the coming weeks, with the hope of having draft legislation at the end of May which would then run through the legislative process.
The first roundtable discussion tackled the issue of employer coverage: which businesses should the policy apply to? At the table this morning were:
- Pamela Hinckley, Tom Douglas Restaurants;
- Bob Donovan, Donovan Employment Law;
- David Jones, Subway;
- Joe Mesorati, UFCW 21;
- Rachel Dehn, Restaurant Opportunities Centers United;
- Sejal Parikh, Working Washington.
Herbold asked each of the stakeholders to comment on the meeting last week and share their observations and learnings. But it was clear right off the bat that Hinckley and Donovan had a different agenda: they launched into their talking points on behalf of employers. Hinckley tried to claim that Tom Douglas Restaurants was one of the “good guy” employers, loved their employees and treated them right (despite Douglas’s bad-mouthing of the minimum wage campaign); she also claimed that there are “so many issues that affect businesses” that perhaps the Council’s attention should be focused on those instead. But Donovan turned the knob up to eleven, insisting that there was no evidence that there are issues with worker scheduling in Seattle, despite surveys that clearly show it’s a national problem and the presence of many national restaurant, retail and hospitality corporations here in Seattle. He noted that none of the people in the room for the roundtable had heard of “predictive scheduling” before. He even boldly claimed that the scheduling practices being questioned might actually be good things for workers since it gives them more flexible scheduling. Donovan’s big message was that the whole process should be slowed down and the city should go collect data locally before taking any additional steps. He did raise a couple of good points worth considering in legislation, including that startups often don’t know in their early days what their true staffing needs will be. He also introduced a topic that would be raised again later: that businesses are often subject to influences that are far beyond their ability to predict, such as a restaurant featuring outdoor seating that must deal with unpredictable weather; a sudden rainstorm might instantly reduce their seating by a significant fraction.
The Council members present were clearly having none of this. O’Brien, ever the conciliator, acknowledged that these are real burdens for businesses, but the real question is how that burden should be shared by both businesses and employees fairly rather than just being pushed down onto workers. Sawant characteristically pushed back hard on Donovan, challenging him on his assertion that the bad scheduling practices don’t exist, to which Donovan doubled down on his earlier position, citing a study showing that those workers have more control over their hours, and that “a lot of people are attracted to industries that have a lot of flexibility.” Sawant pressed him again, asking him “So you believe that Seattle industry is unique so that the national trends don’t apply?” Donovan’s somewhat heated reply was that the only way to get a fair assessment is by collecting data, accusing Sawant of making assumptions and in so doing being “reckless.” “If you’re going to pass legislation you need to know what’s really going on here.” Herbold jumped in on Sawant’s side, pointing out that they are trying to get more data but that “Seattle would need to be a big outlier” for the national data to be irrelevant here.
Herbold kept trying to get the conversation back to its original intent: reporting out on the roundtable discussion rather than reiterating canned talking points.
Jones set a different, much more balanced tone. Citing his time working at several other restaurant chains, he noted that there is great diversity in scheduling practices across the industry, and that Subway, for example, doesn’t use predictive scheduling, because In Subway’s culture “the employee is the #1 customer.” He also observed that the culture of the store dictates the scheduling process, and that in franchises it’s often the manager that controls that culture.
The three representative for workers made a little more effort to report out on the roundtable discussion but also largely stuck to talking points — though they clearly had a more sympathetic audience with the Council members. Parikh noted that the roundtable discussed which industries would be important to cover, and that larger businesses tend to be a bigger problem. She did say however that they hoped to find a policy that will work for both employers and employees, because “healthy employers” are important for ensuring healthy employees. Parikh went into a bit more detail into predictive scheduling software, noting that “technology is being used for evil.” She cited Domino’s own “Pulse” system for predictive scheduling of workers that they developed in-house. And she pointed out that it was a problem that none of the business stakeholders in the roundtable knew anything about the predictive scheduling software in use today for “just in time scheduling.”
Mesorati, who works in the retail industry, reinforced that just-in-time scheduling, enabled by new technologies, is an emerging problem, driving more part-time workers, shorter shifts, and less advance notice. Safeway, for example, informs their workers on Thursday afternoon what their schedule will be for the following week (starting Saturday). For him, that meant not knowing whether he would be able to participate in the political caucus this Saturday. Mesorati claimed that in a union workplace like Safeway some protections have been negotiated, but in non-union shops such as Target and Wal-Mart the situation for workers is far worse.
Dehn, who has experience in the restaurant industry, spoke to the nuts-and-bolts of restaurant worker scheduling. She explained that often the time a shift starts is fixed, but the end time is not and is at the discretion of the manager – a process called “phasing.” Sometimes this can be a good thing, if someone wants the flexibility to get off work early and the manager is diligent about asking employees their preferences, but it is also ripe for abuse through nepotism, favoritism, and retaliation for refusing to work other shifts on short notice. Dehn also explained “short shifts,” which is when a worker’s full-time shift is broken into two shorter shifts with an unpaid break in between (such as mid-afternoon between lunch and dinner). Both phasing and short shifts, along with just-in-time scheduling, make it difficult for workers to find and keep childcare to allow them to work. Jones pointed out that part of the problem is the American “lunch hour” culture, where people generally eat at fixed times separated by significant lulls, and until that changes the restaurant industry will always have a limited number of full-time shifts. Gonzalez noted that she would like to hear more in future briefings about what the industry best practice is for phasing.
The representatives for workers all came prepared with statistics they could quote from studies they had run, which scored them credibility points with the Council. Herbold asked them each to submit the studies so they could become part of the record they are accumulating on the way to drafting legislation. Donovan challenged the studies, arguing that the Council needs to commission its own studies and not trust those from any of the stakeholders on either side.
In closing, Herbold stated that she and Gonzalez dove into this issue because of the change in practice: that businesses are moving from using an employee shift as a basic unit of scheduling towards using an hour as the basic unit. Gonzalez said forcefully that she is unapologetic about her focus on the issue, and that they can disagree on the pervasiveness of the bad scheduling practices, but not that the problem exists — to which Donovan responded equally forcefully that he is unapologetic for insisting that the process slow down, claiming that it doesn’t seem like an emergency. And Mesorati retorted that for a parent who can’t arrange for childcare in order for her to work, it is absolutely an emergency.
Sawant’s closing remarks reiterated her view that in the face of the national data the narrative that the problem is just “a few bad apples” doesn’t hold up. In addressing Hinckley, Donovan and Jones, she said that their position is different from hers, and she doesn’t expect them to align.
Herbold had the last words, pointing out the obvious: that it was going to be a difficult conversation. But she asserted that she was not pushing it too fast, and in response to Donovan’s earlier claims that there was already a draft legislation she and Gonzalez both assured him that there is currently no such thing and that this process is an earnest attempt to gather information from all stakeholders in an inclusive process before drafting begins.
The employers — especially Hinckley and Donovan — did a fair amount of harm to their cause today, both in their denial of the obviousness of the problem and in their open rejection of the inclusive process that Herbold and Gonzalez are trying to use to craft a piece of legislation that addresses bad practices without catching good businesses in the same net. It will be interesting to see whether they change their behavior in future meetings, or whether at some point Herbold an Gonzalez retract their olive branch.