Secure scheduling: employers are blowing their big chance

When new Council members Lisa Herbold and Lorena Gonzalez took up the issue of secure scheduling earlier this year, they decided to try an ambitious new approach to get to a draft legislation. While the two of them in the end seem to be getting the information they need to write an ordinance, the conversation that’s leading them there is falling short of their ideal. And the employers are largely to blame.

The process that they laid out, with the cooperation of the Mayor’s Office, was for the Office of Labor Standards to organize two sets of “stakeholder meetings” — one for employers, another for workers — in the weeks between the Civil Rights, Utilities, Economic Development and Arts Committee meetings. Discussion topics are assigned for each meeting. Each stakeholder group would then send representatives to the next CRUEDA committee meeting to report out on their group’s conversation, giving them the chance to communicate directly with Council members. The original schedule planned on the drafting process to begin this week and proceed through May through a set of consensus-building discussions.

The stakeholder meetings are happening, and representatives are showing up at the committee meetings to report out — sort of. The workers are giving new meaning to “organized labor” as they show up and speak with one voice; they don’t necessarily do a lot of “reporting out” of what happened at their stakeholder meeting (they rarely refer to the meeting at all) but they have their talking points related to the assigned topic and they are articulate.

The employers, however, are a mess. Three weeks ago, at the first “reporting out” session, the employers sent in a lawyer who defiantly asserted that despite national surveys showing clear issues around advance notice, predictability, and other secure scheduling topics, there was no evidence that secure scheduling was an issue here in Seattle. This played right into Council member Kshama Sawant’s hands, and she quickly labeled this viewpoint “Seattle exceptionalism” and has thrown it back in the employers’ faces several times.

Last week, at the second report-out session, the topics were advance notice and “predictability pay.” The employers were smart enough not to bring the lawyer back to the table, but they were forced to admit that they were well behind in their coverage of topics and had spent their meeting discussing among themselves what the problem was, which employees were being challenged, and the various kinds of software companies use for scheduling employees, communicating those schedules out to employees, and in some cases managing budgets of hours to be distributed among workers by managers. And their report didn’t even provide any useful insights; their conclusion on the software was that there was no pattern as to which employers used scheduling software or even what features; each employer made pragmatic decisions based upon what they thought would be useful to them. They also pondered among themselves about why certain industries (food, retail, manufacturing, hospitality) were being singled out for regulation of their scheduling practices, which shows either a shocking lack of self-awareness or a wanton disregard for their employees’ well-being. Finally, they reported that several members of the employer stakeholder group complained that secure scheduling regulation is coming too soon on the heels of the recent minimum wage ordinance and it’s too hard for them to accommodate all of this so quickly. Which begs the question: how bad does it need to be for their employees before they would feel a moral imperative to act now?

Despite this pile o’ garbage that the employers brought in, it would be unfair to label them all as evil, money-grubbing profiteers out to screw over their employees at every turn.  There are many employers, and bosses who work for them, who genuinely care about their employees and want to support them. One of them is Pamela Hinckley, who works at Tom Douglas Restaurants and has presented for the employers stakeholder group twice. And despite her company’s vocal opposition to the $15 minimum wage, it does seem to care about its employees and it seems to want to be reasonable. But at the same time, Hinckley is getting schooled in how little she understands about her employees’ problems and the things her company is doing to exacerbate them. Case in point: Hinckley brought up the fact that the majority of schedule change requests come from employees, not employers; to her, this means that it’s a challenge and a frustration for her company to try to be flexible and accommodating of an employee’s need to study for a test or take a family member to the dentist. Taken at face value, suddenly it’s the employers that are the good guys here and the workers who are making it difficult. Council member Herbold even helped them along with this point, noting that accommodating a schedule request from one employee becomes a required schedule request for another in order to fill that space in the schedule.

But that’s hardly a complete picture of what’s happening. Sarah Cherin of UFCW Local 21 and Sage Wilson of Working Washington, two members of the employees stakeholder group, confirmed that the majority of schedule change requests do indeed originate from employees. But those requests happen in the context of unpredictable schedules handed out with little advance notice. As Wilson said, when you get your schedule only three days in advance (as Safeway workers do, along with many other low-wage workers) then every change is last minute by definition. He cautioned against drawing conclusions from the large number of employee-requested schedule changes, since “often it’s workers trying to fix the problems being done to them by the short notice of their schedules.” Rachel Dehn of the Restaurant Opportunity Center took it further, explaining that schedule predictability is really about being able to go to college and know that you can coordinate your classes with your work schedule, or (since many hourly jobs are part-time by nature) being able to hold a second job and coordinate the hours across both.

The employers had no response for any of this. They were caught completely flat-footed.

Cherin also confirmed that there are, in fact, a lot of good bosses out there who want to be flexible and do the right thing for their employees. But she also pointed out that having a secure schedule that allows workers to do the things they need to do with the rest of their lives should not be dependent upon winning the “boss lottery” — especially since bosses move on or move up and having a good one now is no guarantee that you will have one in the future. She also pointed out that while some employers do allow employees to limit the hours they can be scheduled for, they extract a price for doing so by limiting the hours that they work. In order to get the maximum number of hours, workers need to maintain “open availability” — even if they only work part-time. Open availability is also clearly incompatible with having a second job.

Herbold and Gonzalez clearly are hungry for more data to drive the policy decisions in the legislation. Herbold asked whether both stakeholder groups could collect and contribute data on whether there is a correlation between the number of employee-requested schedule changes and the amount of advance notice the employee gets of their schedule. Hinckley was happy to do this, and seemed to recently have come to the realization that she needed to gather information (confidentially) directly from employees rather than rely on her managers to represent those workers.

The employees also came prepared to talk about how much advance notice is required. The general consensus, as voiced by Cherin, was that two weeks is about right as a minimum. Wilson invoked the recent announcement of the Alaskan Way Viaduct closure as a validation, suggesting that people seem to think two weeks is enough time to rearrange your life.

Cherin also spoke to the issue of “predictability pay” — the notion that if an employer required workers to take schedule changes on short notice (separate from being “on call”) then those workers ought to get compensated for the disruption to their lives. “Without predictability pay,” Cherin said, “posted schedules are just suggestions.”  Cherin’s recommendation was that if your shift gets changed or you get called in on short (or no) notice, then the employee gets one additional hour of pay.

Sawant asked Dehn about split shifts and “phasing” at the end of shifts, and Dean had no trouble describing the problem — and quoting the U.S. Department of Labor definition of a rest break, which needs to be “useful, restful and productive.” With split shifts (with a break between lunch and dinner) they rarely are, and getting phased out early from the lunch shift because of low customer volumes just makes the problem worse; doubly so for parents who are paying for child care during that break between shifts when they aren’t earning money themselves.

The employers are clearly losing the hearts and minds of the Council members in this conversation; arguably the odds were stacked against them, but Gonzalez and Herbold offered them a seat at the table and a voice in the crafting of the legislation and they are quickly squandering that opportunity through unforced errors. They probably never had a shot with Sawant, but now they have given her justification to ignore them completely. And she has decided to do exactly that, saying “we know what employers have said in response and opposition to every labor law. I don’t want to go by what businesses say. I want to go by what makes sense for public policy in the interests of workers.” The three other Council members in attendance, Herbold, Gonzalez and O’Brien, are being more kind in their comments and are acknowledging the employers’ continued participation, such as it is, but their patience is likely running thin. If the employers don’t start bringing useful contributions to the table, they will soon find themselves with no allies, and no one listening to them,  when the real drafting begins.

For the next set of stakeholder meetings, the employers are scheduled to play catch-up and tackle advance notice and predictability pay. The employees will continue on to discuss split shifts, the right to request, the right to rest between shifts, and access to hours.

Herbold also mentioned that Council members are meeting separately, outside of the stakeholder meetings, with both workers and employers. Hopefully those conversations are more productive. Surely no one expects the employers to lovingly embrace new regulations, but they have been invited to sit at the table as peers to labor by a set of City Council members far to the left of center who seem to be sincerely listening and sympathetic to their perspective (with one obvious exception). That is not an opportunity to sneer at.

Herbold’s and Gonzales’ dream of getting to consensus across the stakeholders seems to be slipping away, but nevertheless the issues are becoming clear and the two will have plenty of ideas for regulating employers’ scheduling practices. Without a doubt there will be new secure scheduling regulation this summer; the big question is whether employers will grasp their opportunity to influence it before the Council decides simply to forge ahead without them.