Timesheets From On High
Oregon is working to pass a law to require employers to treat their workers’ schedules with a little more consideration:
The Fair Work Week Act would set work scheduling standards for the largest retail, hospitality and food service employers – those with at least 500 employees worldwide. Starting in July 2018, those companies would have to give their Oregon employees written estimates of their work schedules seven days before the start of the work week. The notice requirement would increase to 14 days in July 2020.
The bill would set other requirements, too, including the right for employees to rest between shifts and receive extra pay if they’re scheduled to work two shifts with less than a 10-hour break in between. Hannah Taube, spokeswoman for the Working Families Party, praised the measure on Thursday. The party worked with the United Food and Commercial Workers Local 555 union and other interests to push for passage of the bill.
To be perfectly honest, before I read the details I had vaguely figured that they would take a legitimate issue and turn it on its head by offering something I couldn’t support. Perhaps I should have known better since among states that recently raised the minimum wage they are the only ones to take regional cost of living into account. So something may be working right in Oregon, and after reading the details I am happy to report that the terms actually sound pretty reasonable to me. It’s not the bill that I would have written, but it’s probably one I would have voted for.
My nitpicks actually run in both directions. On the one hand, the 500 employee minimum strikes me as awfully generous to employers. That’s going to exclude an awful lot of employers. While I do like giving McDonald’s franchisees and owner-operators of gas stations and the like a leg up on their corporate competitors, that leaves a lot of employees unaffected by the legislation. The counterargument for this is that if you force the big employers to do it, the small ones might have to in order to keep up. It may simply set an informal standard. Employees will come to expect it and employers will at least try to abide by it, which is often more than they are doing now.
I think they should simply do seven and wait-and-see rather than automatically beefing it up to 14 by 2020. I am glad that they are giving so much lead time on the increase from 7 to 14, however. I am also not big on the 10 hours between shifts, but I’m not going to go to the mats over it. My man Hei Lun Chan drew attention to another concern:
In my job this happens 50+ times a week–people have shifts extended or added because others are late, call out, there’s a storm, etc. 4/
— Hei Lun Chan (@heilun_chan) June 25, 2017
He worries that this will result in worse customer service, which it might. There are a lot of legitimate reasons for employers to change the schedules around at the last minute. Indeed, for most of my employers this has really been a non-issue. My employers – even when they worked in the service industry – didn’t like having things up in the air any more than anyone else. I don’t recall if I always had a full 7 days of lead time, but it was certainly enough.
If I felt like I could generalize from my own experience, I might be against this. However, there have been enough stories over enough time of last-minutes scheduling that’s I do believe it has become a problem and that employers have found ways to take advantage (and there may have been more of it going on this, that I was just unaware of). So while I am not unsympathetic to employers just trying to meet staffing needs, to some extent the industry hasn’t earned my trust on these matters.
This may be a non-issue, however. The bill (PDF) does provide for a series of exceptions in the case of adverse weather, absences, and the very sorts of things that Hei mentions. The law does stress that employees can be asked but not required to work late. Would they pretty much refuse to work without the extra pay? Would they basically have to offer the extra pay at the outset as a practical matter? Or is hours hours? Would it depend on employers being decent much of the rest of the time?
Once again, this is the sort of thing that bad faith gets an employer. I don’t lament if the employees have a little extra leverage here, and I am less worried than I might otherwise be that employers have to be a little more careful. I can imagine it coming around and biting parents in the posterior if their potential kid-is-sick absences cost the company more dearly. Time will tell.
But the law steps in where culture fails, and there’s never any guarantee the law will do a better job than culture might have done, if only the actors had tended to it.
Image by Damian Gadal 
500 employees strikes me as too high as well. The law should be for anyone with 50 employees or above. Maybe 25.
The issue is that a lot of working class people are single-providers to dependents and the split shifts or sudden last minute changes can mean having to scramble for care for their dependents and/or finding they might be short on cash for the week because they lost a shift and they find it hard to manage two shift jobs.Report
small businesses have harder time to accommodate regulations. bigger employers better able. business support structures will be developed to help employers handle the regulation. can be extended to smaller employers then.Report
25 was just thrown out but there are numbers that are higher than 25 but lower than 500 that can easily comply with the law.Report
Who’s the “direct target” of this law in my estimation? Darden Restaurants (under its many brand names). Kroger Grocery Stores (under its many brand names). Think “Olive Garden.”
The big thing here is the idea that an employer needs to change schedules on the fly when employees are unable to work. Yes, it’s the case that sometimes employees get sick, or have family emergencies, or other things happen in their lives that they must attend to and cannot reasonably be expected to give notice to their employers about. And it’s also the case, particularly for who I see as the direct target of this law, that a small but palpable percentage of employees are going to simply flake.
So, as Chan points out, that leaves the employer in a bind because the manager only finds out at the last minute that an employee isn’t coming in and needs to do something right now to fill that spot. And we dig down into the law and find an exception for exactly that sort of circumstance, which seems reasonable and good.
But.
The problem is not that the exception doesn’t exist in the law. The problem is going to be whether or not the employer is able to document that the circumstances triggering the exception were actually in place.
Consider a different sort of personnel regulation in a different sort of context: anti-race discrimination laws in an at-will employment state.* When you’ve got at-will employment, the employer can discharge for any reason at all, or even for no reason at all. Add an anti-discrimination law to that, and now the employer can discharge for any reason at all, or even for no reason at all, but not for a bad reason such as racial discrimination. Which doesn’t mean White Employer can’t discharge Black Employee. Indeed, it doesn’t mean White Employer can’t dislike Black Employee because Black Employee is Black and then discharge Black Employee. If White Employer can prove a legitimate, non-discriminatory reason for the discharge, his attitude about Black people becomes irrelevant: e.g., Black Employee reports to work an hour or more after his scheduled shift for five days in a row. You can fire someone for being tardy. How does the employer prove a legitimate, non-discriminatory reason for the termination? It basically comes down to documentation: if the employee is required to use a timecard or its equivalent to begin his workday, the employer has records of when the employee clocked in. That lets us test whether the claim of “terminated for tardiness” is congruent with the facts or not. If the employee really did clock in late for five days in a row, I’m quite unlikely to take that case.** “Terminated for poor quality work” or “terminated for bad workplace attitude” can be a good deal more difficult for the employer to document.
Turning our attention back to Oregon’s scheduling law. You don’t have to pay the premium wage to an employee called in to unscheduled work on short notice, if you can prove another employee flaked on you at the last minute. So, what this law really requires is not to pay premium wages but it requires more thorough paperwork to avoid paying the premium wages. And my critique of that is lots of employers have real situations like this, and those are the situations in which the workplace management pressures are by definition going to be the most intense, and therefore the situations in which contemporaneously filling out paperwork is going to be the most difficult for the manager on the ground, dealing with a short-staffed kitchen, to properly and thoroughly execute.
Take a less highly-structured company than Darden or Kroger, and the administrative burden needed to avoid the financial burden becomes what’s really being increased. It’s conceivable that companies, or at least individual managers, might rather simply pay the premium than deal with the paperwork. Which creates another area of dispute: some employees may desire to compete for the chance to earn premium pay, and that means managers now have another area in which they might discriminate whether intentionally or inadvertently.
Hmm. Maybe I need to open up an Oregon office.
* Here, I say “at-will employment state.” Which means “anywhere that isn’t Montana.” See Montana’s Wrongful Discharge From Employment Act, MCA 39-2-901 et seq. Every other jurisdiction in the United States and its territories, including Federal employment, has a presumption of at-will employment as the bedrock upon which its employment law and employment regulations are built. Civil service laws are carved out as an exception to at-will employment, and there are substantial exceptions to civil service protections, too, especially at higher levels.
** Now, if the employee offers up that white employees are also often clocking in late, and no white employee has ever been fired for doing that but black employees are, then maybe we’re on to something. Maybe. Gotta see if the evidence really bears out that contention.Report
@burt-likko
From what I have read companies also use really sophisticated software to determine busy or not periods and this can change on a dime.
I find it interesting that you see this about flakey staff and I see it about employers suddenly taking away Thursday.Report
I’d be really interested in seeing the data for the software scheduling, because I’m sure they’re doing it but I’m skeptical that the granularity is that good (or that the level of granularity they claim actually requires data from a couple of days before the prediction).
The flaky employee issue is a major one from what I’ve heard from managers of low-wage workers. They’re constantly having to call people in to cover for last-minute changes, although I’m not sure how much of a difference 1 week vs 2 weeks makes. “Flaking out” seems like a very last minute thing, so having flexibility to deal with it is good.
But I’m also wondering what the incentive is for the worker here. If I call you and say, “Saul, you’re working today because Joe flaked out,” and you say, “Today is my brother’s wedding, so I can’t come in with no notice like that,” it seems like my options are limited. I shouldn’t be able to punish you for that. Or if I can, it seems like your job is an “on call” job and you need some sort of compensation for being on call.Report
I remember people talking about the software when there were a bunch of issues with swing shifting a few years ago and public pressure caused some companies like Starbucks to end swing shifting.
The swing shifting thing seems to be done in large businesses with long lulls of non-peak hours. So a downtown coffeeshop like Starbucks probably has a morning rush from say 6 AM to 10 AM and then a mid afternoon or late afternoon rush and then down time with fewer customers. So workers would need to work from like 6 AM to 10 AM and then 3 PM to 7 PM which is difficult if you have a family.
I’ll concede that the flake thing is real but I think we in white-collar professions often forget how much power managers can have in retail or shift work situations especially with the world of at-will employment.Report
So workers would need to work from like 6 AM to 10 AM and then 3 PM to 7 PM which is difficult if you have a family.
An obvious conclusion here is that this is not a job that’s suitable for someone who has a family. On the other hand, it might be suited well to the schedule of a student who has midday classes. Or it could be divided up such that on any given day, a given worker will only take one of those shifts. Obviously it would have to be part-time, but there are plenty of people who want to work part-time. Someone could also cobble together a full-time schedule by working the morning or late afternoon shift at Starbucks and the lunch shift at a restaurant.
Not every job is going to accommodate everyone’s schedule, and that’s okay.Report
One: HR software is pretty granular. The software I see used most often is PeopleSoft and it seems like it would not be super-difficult, at least after the fact when I get to interact with it, to figure out individual employee eligibility for, say, the mandatory 10-hour period between shifts that the Oregon law contemplates. Getting that software to interact with sales data is a matter beyond my usual work, but as we discuss things like a Starbucks, using computer-compiled and analyzed historical sales data to do things like predict rushes and then schedule workers accordingly actually seems like it would be within the ability of a human manager of ordinary intelligence.
Two: Compensation for “on call” time is a hot topic in wage-hour litigation. When an employee is “on call” and the degree of flexibility an “on call” employee has to accept or decline offered “on call” work, and what limits are put on employees’ activities while they aren’t working but are “on call” is a subject matter area where I spend a lot of time navigating different versions of facts — because the more mandatory a response is, and the more restrictive limits on off-duty-on-call activity are, the more likely it is that the employee is owed wages for that time. Some issues to think about: if you’re “on call,” can you have an alcoholic beverage? Can you have enough of them that you become intoxicated? How far away from the worksite are you allowed to travel, and how soon after you’re called in are you expected to report for duty?
Three: Saul, one of the reasons I try to think about the employer’s perspective is because I hold employers to task for violating these rules. I do that both when I have them as my clients to advise them, and when I sue them on behalf of indivudal employees. In all cases, I like to be able to say to the employer, “It’s just a rule, you need to learn the rule and it’s possible to get the job done within the rule.” If that message doesn’t get through, I can then say, “It’s cheaper to comply.”Report
Right, but the claim that I often hear is that this is one of the reasons for last minute scheduling. That implies that there’s some information that arrives, say, Monday, that gives Starbucks an idea of the rush on Thursday that’s so much more accurate than the collected data they have for every day prior to that that they need to hold off on scheduling people until that last bit of data comes in.
It’s possible that that’s true, but I’m super-duper-duper skeptical of the claim based on what I know about similar types of predictive work and a rough layman’s understanding of how retail traffic works.Report
tf,
How many people lock down their cellphone locational data?
If you can get the data (and Uber’s greyballing shows that not everyone is on the up and up when it comes to stopping physical assaults on their employees), you can predict not future, but current busyness.Report
tf,
I get no extra compensation for being on call.Report
Are you an exempt employee or hourly? Big difference.Report
I think that we have to account for large employers employing all the big data it has to maximizing profits, particularly at the expense of employees who haven’t the leverage, the info, or the training to do the same.
How many employers avoid paying anything at all for those extra minutes of work in between shifts?Report
Gas stations (quick marts) will have to rethink their operations.
Most of the scheduling is almost on-the-fly, and swing shifts are common because few people want to work third shift, and often the third-shift worker is alone on the shift (which runs afoul of rules requiring breaks and a lunch).
Each location is run a bit like a mom-and-pop operation with 8 to 20 employees, but is part of a major corporation like Tracks, Minit-Mart, 7-11, Shell, BP, Chevron, Citgo, Circle-K, Exxon, EZ Mart, and Speedway.Report
Most gas stations are individually owned, some of the ones you list are primarily franchise arrangements where the store owner is required to buy gasoline from the wholesaler. Sometimes a company like BP acquires ownership of an individual store because of a dispute (failure to pay) with its franchisee, but they aim to sell the store. They see themselves as in the business of exploration and production of fuels where the margins are higher than retail.
So, I’m not sure if the law would apply to this group, or if they would simply avoid it by more aggressive sell-offs, or if the law provides advantages to large retailers against small retailers so they buy-up smaller competition.Report
They just passed a law like this in the city of Seattle recently, and for me it’s been a godsend. I used to not find out my schedule for the week (Monday-Sunday) until 3am that Monday, and since I generally open that means I wouldn’t know if I had to be at work until about six hours before I had to be up. It was incredibly annoying and made it difficult to plan in advance. Now, they have to provide the schedule three weeks in advance, and if there’s less than 12 hours between shifts, they have to pay me overtime for the differential.Report
My sense is that this is where the solution lies. If employers have to make last minute changes to the schedule, they ought to compensate workers for those changes. And that does two things: it compensates workers for the extra costs of the uncertainty and and it gives management incentives to finalize schedules as far in advance as possible.Report
jr,
Either that, or do it the Old Fashioned Way.
The manager, in that case, IS your swing person. He fills in for ANYONE who’s off at a moment’s notice.
(Obviously, this doesn’t fix two people going off, but that’s far far less likely).Report
Maybe you should get a better job.Report
Someone has to do the job, for now. I fail to see why an employer is significantly burdened by having a schedule ready more than 6 hours in advance of the start of the schedule. Sounds like a lazy manager to me, who puts it off until the last minute.Report
I assume this law applies to hourly workers. Wouldn’t one of the likely responses be to try and move hourly workers to salary? Of course you’d have to navigate that thicket first.Report
My guess is the law applies to non-exempt workers, which is not the same thing as hourly workers.Report
There’s exempt and non exempt. I always understood “non exempt” to be essentially “hourly”.Report
This is a common misconception, often abused by employers. Take “exempt” to be a subset of “salaried.” See http://www.flsa.com/coverage.html for a more detailed rundown.Report
My days as an hourly wage slave are long past, but in the 1990s I did a stint with Walmart. My resulting dislike of the store remains to this day, but it wasn’t because of the scheduling. I was a department manager, which isn’t nearly as exalted as it sounds but had the benefit of a predictable schedule. Partly this was before Walmart got really enthusiastic about keeping employees part-time to avoid paying them benefits, and partly because it was before the cell phone era. If the phone rang on your day off and you suspected it was the store calling you in to work, you simply didn’t answer. We had answering machines, so if it was a call you wanted to take you still could. I absolutely do not believe that Walmart wouldn’t have abused its employees this way, had the technology existed. And even then the cashiers got screwed over pretty routinely.Report
“If the phone rang on your day off and you suspected it was the store calling you in to work, you simply didn’t answer. ”
I do that now with my cell phone. Either I know the person calling (in my contacts) or I don’t, either way, I make a decision to swipe left/right based upon who’s calling. If it’s important, they’ll leave a VM.Report
Sure, but it is harder nowadays to dodge a call from your boss on the grounds that you weren’t home when the phone range. That gave us plausible deniability, back in the day. “Sorry, but you aren’t in my contacts” isn’t going to cut it, and your boss will certainly leave a voice mail.Report
“Dude, sorry I missed your call. I left my phone in the car.”
I left my phone at home.
I was listening to music and didn’t hear the ringtone.
I didn’t check VM until I was done with my errands since I didn’t recognize the number.
How did you get my personal number?
My department, none of which have company provided phones, makes a habit of saying “I don’t know his personal cell number, sorry”. in cases like this.Report
These are all plausible one-shots, but stuff like “I left my phone in the car” ages poorly upon repetition. If willingness to come in on short notice is a condition of employment (de facto or de jure) then ducking calls like this is not the key to a long tenure.Report
Richard,
Well, they just put ME on call. Not for extra pay, mind, but at least it’s defined. “here’s when you show up”
Other people at my employer (whose Entire Team needs to show up) get employer provided cell phones.Report
The dog ate my phone.Report
What’s interesting to me is the idea that a change of more than thirty minutes requires a full hour of pay. Does this hour apply to calculations of Full-Time Equivalents for sanctions under the ACA?Report