Secure scheduling: the conversation continues, and it’s getting better

This morning the Council’s ongoing conversation on secure scheduling continued with stakeholders representing both employers and workers.  And the good news is that they’re finally making progress, because two things are finally going right.

First, the tone has become much more cooperative with the employers. For the first two meetings, the employers struck a defiant tone that got them nowhere with the Council (and lots of vitriol from Council member Sawant). But this time, they sent in two thoughtful, reasonable people: Kiersten Hutchins, a Government Relations Specialist for temp-employment company True Blue, and David Jones, the owner of several Subway franchise stores and a Blazing Onion burger joint in the Seattle area. Unlike previous weeks, both of them were willing to admit that there are, in fact, employers with bad labor practices here. But they also pointed out a problem with the “stakeholder session” model: it will tend to draw the good actors and not the bad ones. Because of that Jones suggested that the employer stakeholders were a better resource for suggesting best practices than for speaking on behalf of industry as to how prevalent  the bad practices are:

“We’re probably more best practices than we’re able to say that it doesn’t happen. Because I know it happens, I read the articles, you know, I read what’s being said out there… I agree that there’s an issue there, and I agree that there are some people who can help with best practices.”

Hutchins commented that she was happy the Council is commissioning a study on local labor practices, but not because she denies there are bad practices here:

“We really appreciate the fact that the city is focusing on a study that actually gets what’s going on here, because while national data is fantastic and provides a very high overarching issue, the best way to craft policy is to know what’s actually been the issue here. so maybe for the City of Seattle it’s split-shifts and not clopening…We might find something that is an issue that neither party sought to address because nobody brought it up because it wasn’t apparent.”

Of course, the employers’ new attitude didn’t stop Sawant from picking nits and picking fights. She made a big point of trying to make a “gotcha” moment of Hutchins’ discussion of “voluntary” vs “involuntary” shift changes by pressing her and Jones to admit that involuntary scheduling happens. Jones’ response: ” I don’t think that we’re disagreeing.” Sawant made some bold statements about what a “fair scheduling” ordinance would of course do, which is strange given that it hasn’t been written yet. Sawant was fighting last week’s battle where the employers were still arguing that any regulation would be overreaching; this week their requests were much more constrained to raising concerns about overly constraining employers’ flexibility to accommodate workers’ requests in the name of constraining their ability to abuse those employees. Sawant came out of it looking like a bully.

And yet, the cooperative nature of the employers meant that this morning’s discussion was by far the most productive to date. Because of that, the second thing went right: the issues are starting to become clear enough to imagine new legislation being written to address them.

Three big issues have emerged: predictable schedules, access to hours, and retaliation. What makes the situation complicated is that they are intertwined.

Low-wage workers need access to enough working hours to make a living wage; they also need a schedule that is predictable and defined enough in advance that they can plan the rest of their lives outside of work. But some employers use access to hours as a “carrot” to force workers to take less desirable shifts (such as split shifts or clopenings) or to have “open availability” so they can be scheduled for any shift. For some companies this is an open policy: you can restrict the hours that you are available to work, but as a result you will likely get scheduled for fewer hours.  Employers also use access to hours as a “stick” to punish workers who refuse to come in to work extra shifts on short notice, through some combination of reducing their scheduled hours and not giving them the opportunity to pick up additional shifts that come open. Which brings us to the third big issue: retaliation. As was discussed today at length, retaliation against employees looks very different today: rather than firing or harassing employees, they will passive-aggressively use access to hours and schedule unpredictability to punish employees who don’t cooperate.

What’s becoming clear in the discussions is that new fair-scheduling regulations need to prohibit retaliation through scheduling practices, and to provide a clear path for employees to complain if they believe they are being retaliated against. The employers were in full support of that; in their view, good businesses not only benefit from a level playing field where all businesses are required to treat their employees fairly, but they see the bad actors as giving their industries a bad name and hurting all employers’ ability to hire workers.

Once retaliation is taken out of the equation, the picture becomes much clearer on what predictable schedules and access to hours should look like. The generally accepted view seems to be that two weeks’ advance notice for scheduling is a fair minimum, and that will probably reduce the number of employee-requested schedule changes because they will have a much better chance to schedule everything else in advance. Not everything is worked out however; any issues remain about the extent to which employers must accommodate workers’ restrictions on hours they are available to work so that they can take classes, plan their childcare, or hold a second job. Fortunately, there are solutions that have been negotiated between unions and employers that can be used as templates for best practices.

So then the secondary issues come into play, most notably the right to rest between shifts and the distinction between voluntary and involuntary schedule changes (from the point of view of the worker). The voluntary/involuntary distinction builds on top of the bigger issues laid out above. In a perfect world, all schedule changes are voluntary and can be refused by an employee without fear of retaliation. In the real world, the distinctions between voluntary and involuntary are much more nuanced; for example, a worker might let her boss know that she’s looking for more hours, and near the end of her shift a large crowd shows up and the boss asks her if she wants to stay and work longer that night. Let’s assume for the moment that retaliation isn’t a fear here; even so, if she agrees, was that a “voluntary” schedule change? She was there already (so no extra travel time), she could have refused, she had let it be known that she was looking for more hours, and yet her boss had raised the subject of working later that night. This gets to the heart of where these situations get complicated: the employees have suggested that when a worker is called in to work extra hours (an undeniable necessity for restaurants and retail workers that everyone agrees can’t be eliminated) that worker should get paid an extra hour. But does that apply to all cases, or just to involuntary shifts? If it applies to all, is that creating a disincentive for employers to try to arrange more hours for those who have expressed a desire for more? Even the good employers have a concern that they might get penalized for doing the right thing. There are schedule changes that are clearly voluntary, and others that are clearly involuntary. It’s the murky middle ground that is causing trouble.

What makes this part of the discussion difficult right now is that the Council members and stakeholders are working without good data on the kinds of schedule changes that are being made, who requests them, when they are made, how difficult they are to accommodate, and how many are actually agreed to. Hopefully the Council-commissioned study will shed light on that, because both sides have issues in comprehensively representing all employees and employers ins all affected industries; the issues and practices are simply too diverse.

The “right to rest” issue is a similar situation, and shows up most clearly in two cases: “clopenings” (when someone is asked to work the closing shift one night followed by the opening shift the next morning) and split-shifts (where a food-service employee works breakfast then lunch, or lunch then dinner, with an unpaid break in between). The issue: how many hours of rest is required between shifts? For clopenings, in part it’s simply a matter of picking a number; Hutchins claimed that the retail employers in the stakeholder group put their industry standard practice at 8 hours, though none of them knew why (their best guess was that it was a standard shift length). Sarah Cherin of UFCW Local 21 said that the union-negotiated standard is 10 hours, and Sage Wilson of Working Washington pointed out that it’s primarily a safety issue: both at work where it’s important for workers to be well-rested to avoid accidents, and outside of work where workers should be able to drive to and from work without being too tired to drive safely.  For split-shifts, the issue is much more about predictability; if the start and end times of the two shifts are well known in advance, then the break time is productive; otherwise it’s just unproductive, unpaid time that’s difficult to manage.

None of these issues are solved yet, but the conversations are both getting easier and focusing in on the more difficult, nuanced parts which is definitely a step in the right direction. Thee are more topics still to come, including the “right to request” on the part of employees. There is far less posturing (with the exception of Sawant) and more people rolling up their sleeves and getting to work on identifying worst practices to ban as well as best practices to encourage. They are still a long way from the finish line, but for the first time a path to get there is in sight — and it’s one that will minimize the bloodshed.