Workplace Insights
April 26, 2018

Scheduling Legislation: What Employers Need to Know [Webinar Transcript]

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We'll also explore landmark legislation that are shaping fair work scheduling and the implications that this legislation will have on employers and employees.


Branch Messenger: Hello everyone and welcome to today's Branch Messenger webinar in Scheduling Legislation and what employers employees need to know in 2018.

I'm excited to introduce today's guest Andrea Johnson, senior counsel for state policy at the National Women's Law Center. There she coordinates efforts to advance policies relating to workplace justice, income security and education. Welcome to the webinar and thank you so much for taking time to chat with us today Andrea.

Andrea Johnson: Thank you. I'm excited to be here.

Branch Messenger: Excellent. So, I wanted to kick things off and and first ask you, why scheduling legislation is so important to you and the work that you do at the National Women's Law Center?

Andrea Johnson: So, quickly then National Women's Law Center has been working for over 45 years to advance and protect women's equality and opportunity. We really work hard to champion policies and laws that help women and girls achieve their potential throughout their lives and that means at home, at school and at work. We're located in DC but I work with advocates and legislators and organizations throughout the country to advance these policies. Fair scheduling is a really important issue for us because it really impacts women. Women make up two-thirds of the low-wage workforce where unpredictable scheduling practices are particularly common and women continue to shoulder the majority of caregiving responsibilities.

So, the impact of unpredictable scheduling really falls hard on their shoulders. Women in these jobs, they're child care workers. They're home health aides. They're restaurant servers, fast food servers, cashiers. I think there's sometimes misconceptions that they are folks in high school or college, younger workers but in fact nearly 9 and 10 women in low wage jobs are over age 20 and 44% are in their prime working years of 25 to 49 and a lot of them are caring for children. With one quick stat about a third of these women are supporting children and about 10% are supporting children under the age of four. So, the impact of unpredictable scheduling on parents and mothers in particular is significant and that's a large reason that we're involved in this issue.

Branch Messenger: I think that's a really good place to start, because when we think about the stated hourly employee a lot of people think these are younger workers, college or high school students, but really it spans the gamut and really touches many, many, many different industries that affect the hourly employee. So, I'm wondering to just kick things off here, scheduling is becoming less predictable and that really impacts a lot of hourly employees. What are some of the things that you're seeing that are impacting how employees schedule and how they work around some of these issues?

Andrea Johnson: So, we've definitely seen an increase in just-in-time scheduling especially in the retail, food service, cleaning and hospitality industries. When I say just-in-time scheduling, that's sort o unfair scheduling practice takes a variety of forms. One common thing we see is lack of advanced notice. Many employees don’t have much more than a few days notice, maybe they get notice over the weekend before their shift starts on Monday or they are doing on call scheduling practices.

So, that means that they have to call in a few hours ahead of time to learn if they're going to work that day. That can be problematic for a lot of folks. It makes it hard to schedule another job, to budget, to take classes, but for working parents, it can be really difficult because they have to figure out whether to … are they going to arrange for child care and pay for child care knowing that they might not actually get called in and then have the income to pay for that child care or do they gamble that they won't need child care and work. That can be very difficult. So, that lack of advanced notice, the on call scheduling can be particularly harmful for parents.

We also see a lot of variability week to week and month to month in hours and practices like employee showing up to work and then being sent home early because it's a slow shift. That can be harmful because the employee has already paid for transportation cost to get to work. They've already paid for child care and now they're not getting the income that they were expecting. So, they might end up actually spending more in that shift than earning.

Another practice is clopening where an employee is scheduled to work the closing shift and then the opening shift just a few hours later, and that can be very difficult especially if you're traveling long distances as many folks in these jobs are.

Another dynamic is involuntary part-time work. There are a lot of part time workers these days. A lot of them don’t want to be working part time. They want full time hours and I think the stat is about close to one in five part-time employees work part time involuntarily and prefer to work full-time. We see a common practice of open availability, being basically a prerequisite to somebody being able to get sufficient hours or full-time hours.

So, basically needing to be available 24/7 in order to get hours. If an employee puts limitation on their availability that employers are sometimes responding by cutting their hours drastically. You can imagine that a working parent will probably have to put some limitation on their availability. I need to pick my kid up or drop them off at child care. Things happen and so that is an area that concerns us and those parents in particular having a hard time getting those full-time hours.

Branch Messenger: Again, these are some of the benefits that salary and full-time employees have. If you need a doctor's appointment, if you need to go home early to pick up a child, these are not the type of luxuries that are afforded to some of these workers. Obviously they are very important to them. There's a Gap study by Susan Lambert of the University of Chicago and I think it addresses some things and some questions that employers may have about how this works. I'm curious if you could mention a little bit about that study and how it impacts scheduling legislation for employers.

Andrea Johnson: Definitely. This was a super exciting study that just came out very recently. So, here at the Law Center, we spent a lot of time talking about women and families and their children and the impact that scheduling has on them and the family's case for predictable scheduling. There's also a really strong business case. Studies have shown that unpredictable scheduling can result in higher turnover rates, absenteeism, lower worker engagement which as businesses know those are costly things. More predictable scheduling leads to more productive employees, less absenteeism, reduced healthcare cost and increase revenue. The Gap study really went to this piece about increased revenue. There was some great academics, Susan Lambert, Joan Williams in particular that worked with Gap on the study.

Gap opened their doors to allow them to do the study and put in place a number of practices that would allow for more predictable scheduling. It found that reducing variability in schedules not only increased worker productivity which is already a win, but actually increased sales by 7% which as many folks know is a significant increase goal, increase over the standard goal of of 1% to 2% sales increases commonly sought in the retail industry. So, that is super exciting find. Gap achieved this by working with store managers to improve stability and consistency of shift scheduling making it easier for workers to swap shifts and offering a core group of associates a soft guarantee of 20 plus hours a week. So, some of these types of protections that we're seeing moving in legislation Gap worked to voluntarily implement them in the study to see the effects.

Another interesting point is that the study debunked the commonly understood notion notion that a lot of the variability in unpredictability in retail comes from customer demands, how many customers are coming in the door at any given moment and found that actually most of the instability was driven by headquarters demands. So, things like inaccuracies in shipment information that created a bunch of new work, last minute changes in promotions and visits by corporate leaders, those kind of things were creating a lot of the instability which I think is an important thing for us to think about in trying to figure out to make the case that it is possible for companies … it is in their control to create more stability for workers.

Branch Messenger: It's fascinating to see the research behind this. At Branch, we do a lot of the shift swapping, the advanced scheduling opportunities that we give to hourly employees that use our software. We actually find that absenteeism drops. It's almost like I see change, a shift in thinking fundamentally for a lot of the executives in the corporate level some of these companies to see that there are some things that you can do, some small changes that you can do on scheduling but they have really big impacts on the workforce and on the bottom dollar as well.

Branch Messenger: Victoria's Secret was involved in a case that I think set some legal precedent for some of these changes that we're seeing. I was wondering if you could mention why that case is so important and why it matters for employers.

Andrea Johnson: Yeah. This is increasingly another business case for predictable scheduling is that not having predictable scheduling can make you more susceptible to costly litigation. That is definitely a factor to be taken into account by businesses. So, the case you mentioned was in 2017 Victoria's Secret paid I believe about $12 million to resolve a class action lawsuit brought by hourly employees who argued that the company violated California's reporting time pay law by engaging in this on-call scheduling practice that I mentioned before. California like several other states has had a reporting time pay law on their book for a while and this is a kind of law that provides that an employee who reports to work but is not put to work or is given less than the half of their scheduled hours in the case of California statute, they must be paid for half the usual or scheduled day's work.

So, there's a guarantee of a minimum amount of pay recognizing all the costs that an employee might expend in getting to work and everything. The fact that these are low-wage employees who are really needing that income and expecting it and the cost that they face when it's not there. So, the argument there was that the reporting time pay law made this on call scheduling practice where an employee is effectively reporting in by calling that was a violation. We've seen attorney generals in several different states do investigations into a number of retail companies about their on-call scheduling practices pointing out that it could be a violation of the state's reporting time pay law.

Branch Messenger: Again, for those that may not be familiar, that's a very rather antiquated way of calling employers in by having them dial in on phone trees and phone messaging systems and things like that. Again, that settlement affected I think I believe 36,000 workers if I'm not mistaken. I think that makes a good segue into talking about some of the landmark legislation that shaped where we are with fair work scheduling in the United States. San Francisco really paved the way for a lot of legislation that we're seeing that currently exist and also has been coming down the pipe. I'm curious if you could talk a little bit about how San Francisco really changed the way we think about this from a legal perspective, what their landmark case in 2014.

Andrea Johnson: So, as I mentioned a number of states have had some scheduling related protection on the books for a while. They tend to take the form of this reporting time pay protection I mentioned. There are also a number of states that have split shift pay protection. So, protection against an employer scheduling an employee for a few hours in the morning and then maybe two or three hours later coming back to work an afternoon shift. So, a break between shifts, that's more than a lunch break, and ensuring some pay to compensate for that inconvenience. So, those have been in the books for a bit. San Francisco in 2014 was sort of the first of its kind to really put together a comprehensive scheduling law that includes advanced notice, a work schedule so it's two weeks advanced notice of schedules are required, predictability pay which is usually one to four hours of pay additional that the employer must pay the employee if they make change to their schedule after that two weeks' notice.

Though in the case of San Francisco that pay was only within changes in the last seven days before the scheduled shift. It also included on call pay protections, what we call a right to request which is basically that idea that an employee can make a request to have a certain schedule or just a limitation on their schedule. "I need to pick my kids up on Tuesday nights." something like that without being retaliated against, without being fired. So, a basic protection there.

Then also some protections like go to this part-time work issue. One being part-time parity which is that part time workers should be treated the same as full-time workers with regard to wages, ability to accrue benefits, eligibility for pay raises and promotions that type of protection. Then a final provision what we call an access to hours provision that essentially requires if an employer has additional available hours that they be given first to their current employees before the employer goes and hires new employees. So, trying to make it so that we has less involuntary part-time work going on.

So, I just covered a number of the different scheduling protections you wanted me to talk about. There are a few others that San Francisco didn’t do but this was the first time to really bring them together in a package like that. Those protections were focused on some specific industries notably retail establishments which was defined to include retail stores, fast-food businesses, restaurants, hotels and banks with 40 or more similar stores nationwide and at least 20 employees in San Francisco. So, larger employers in those specific industries where we see some of the most unpredictable scheduling happening.

Branch Messenger: Got it. So, there are a number of other cities and states that have also enacted legislation. Could you touch on those cities and places that currently have legislation on the books right now?


Click here to view our interactive map outlining cities and states with current scheduling legislation in place.

Andrea Johnson: Yeah. So, we've seen a lot of action in the last two years in 2016 and 2017. Cities like Emeryville, California which is a city that has a lot of big box retailers in it passed comprehensive scheduling protections. San Jose, California, they had a ballot initiative focused on this access to hours provision. So, requiring additional hours be given first to the current employees before hiring additional employees. Seattle, Washington passed comprehensive protections. New York City just this last year passed a number of protections and Oregon became the first state to pass statewide protections in 2017. So, that's all been very exciting movement. A lot of it is focused on certain industries. These laws don’t apply to all of employers.

They tend to apply to restaurant food service type employers, retail, maybe hospitality and again larger employers. Then a lot of times are focused on hourly employees since those are the folks really having these issues. I know you'll be sending around after this report that we're putting together kind of documenting all of the details of these laws since they do have a lot of details in them that can … I won't go into detail about every single provision in all the coverage but that will be a helpful resource for folks to understand.

Branch Messenger: Got it. If any of the attendees have any questions about some of this, how may it impact you or the work that you do or the industry you're in, feel free to send us … you can pose a question here in the webinar and we'll get to them at the end. Are there any cities or states that are close to passing legislation here in 2018 that you can speak of at the top of your head?

Andrea Johnson: Yeah. There's an active campaign in Chicago and also in the whole state of Illinois that are worth following. I know that there's been organizing around this issue in Los Angeles, in Philadelphia and Connecticut has been working on a bill there that really goes to some of these on call and sort of shorter term last minute notices changes to schedules. Lots of states are introducing bills like this. Those are the more active campaigns and somebody who talks to legislators regularly, there's a lot of excitement about this issue. It connects into a fight for 15, recognizing that it's one thing to get the higher wages but if you're not getting the hours, those wages don’t mean much to you. So, it's an important next step. I think employers are increasingly talking about how this is an important practice that they need to be engaging in.

Branch Messenger: Again, and I want to touch on a step that I think is important. You mentioned at the beginning a significant chunk of our workforce six million workers identified as part-time employees but really want to work full-time and strive to be a full-time employee. So, when you mentioned the landmark legislation from San Francisco, you touched on some of the fair scheduling provisions and we've identified eight of those buckets that you could go over and highlight. So, I'd love to give you that to kind of spend a few seconds talking about some of the fair scheduling provisions that some of the employers on our webinar today maybe hearing about and may have questions about.


Andrea Johnson: So, as I mentioned San Francisco has that provision and, in the states, where it's been enacted and the bills we're seeing introduced, it would require a certain amount of advance notice of a schedule usually two weeks. Some of the provision also require employers to provide estimates of schedules and minimum hours before an employee begins employment to help an employee know how much income they're going to have, whether they need to work a second job and if there's drastic departures in those predicted hours. They don’t want to be hired and told as we often hear the they're going to work nearly a full-time schedule only to find out that they're only being scheduled 10 hours a week. So, some transparency there on the front end is really important. Emeryville, California, New York City, Oregon, San Francisco and Seattle all have those advanced notice protections.


On call pay, those protections require employers to pay employees for a certain number of hours of compensation when the employee is required to be available to work a shift and to contact the employer or wait to be contacted to determine whether they must report to work so that on call practice. In Oregon and Seattle, these have these protections. In those states, they must pay one half times the employee's rate of pay for any scheduled hours not worked. In San Francisco, it's two hours pay for each scheduled on call shift of four hours or less or if they were scheduled to work a shift of four hours or more it would be four hours of pay there.


Predictability pay, that's when I explained is when there are changes made to the schedule after the two weeks advance notice is given. We want to make sure that the two weeks' notice is a real thing and that the employers will stick to that. So, part of their point of predictability pay which usually is not a large amount of money but something. One hour of pay maybe up to four hours if it's a really last-minute change that additional pay helps to disincentive this practice of making those changes and also helps compensate the employee for the cost they incurred. Recognizing that right now, a lot of the cost are on these employees who are working maybe minimum wage or not much more and they're really not in a position to absorb those cost so this helps to free that slightly.


Reporting time pay is the provision that we have now in California, Connecticut, DC, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island and Seattle. Again, we'll send around a link to a fact sheet that lays this all out in detail. Those are provisions that recognize that if an employee reports to work but then are told that their shift has been canceled, their reduced, that they should have a guaranteed amount of compensation to reflect the time and cost they have expended to get to work and expected income. That's usually somewhere between two to four hours of pay in that circumstance.


Split shift pay is a compensation for any day in which an employee is required to work shifts in which they have a gap or gaps between scheduled hours usually larger than a lunch break. It's usually one additional hour of pay for that practice. Those laws exist in California, DC and New York.
Then the right to request is something that we spend a lot of time focused on...given our focus on women and caregivers. So, that is a simple protection against being retaliated against fired, demoted, having hours slashed for simply asking for right to request a certain schedule or changes in your schedule. In Emeryville, California, New Hampshire, New York City, Oregon, San Francisco, Seattle and Vermont have some level of right to request. It's worth noting that in Seattle and New York City they have what we call a right to receive.


So, in Seattle, employers are required to engage in a timely and interactive process to discuss the request and then they have to grant the employee's scheduled request if it's related to major life event. So, a serious health condition, education obligations, caregiving responsibilities, a second job or changes in employee's transportation or housing. So, the employer must grant those requests unless the employer can show a bona fide business reason for denying the request. New York City also just very recently amended their fair workweek law that was passed last year to require that employees be allowed to take two temporary schedule changes per calendar year in certain circumstances.


Then part-time parity as I mentioned goes to the whole effort to make sure that we don’t have all these involuntary part-time workers and that they're being treated fairly since a lot of them are women and making sure that you're not being paid a lower rate of pay or have less access to benefits because of your part-time status alone. So, I should tell you so that exists in San Francisco as I mentioned.


Then access to hours is the requirement that employers provide additional available hours to their qualified existing employees before hiring any additional employees to work those hours and those have been enacted in Emeryville, New York City, San Francisco, San Jose, SeaTac, Washington and Seattle, Washington.

Branch Messenger: Excellent. Thank you very much. As you can see this is a lot of information for people to absorb but that's why we're here. So, with that being said, I'm curious if you could explain what this means to employers. So, there's always a lot of questions I'm sure people have. You touched on some of the industry's retails, restaurants, what other industries has this impact outside of the core ones you mentioned? Are there others that people may not be thinking about?

Andrea Johnson: Yeah. So, cleaning industries, it's another industry where we see a lot of unpredictable scheduling. There's a lot of discussion about healthcare industries. A lot of the legislation has not touched that sector but I think increasingly advocates are looking at that recognizing that there is a lot of unpredictability there some of which is unavoidable but some of which could be reduced to that some unpredictability happens in many business models but just recognizing that that's cost of doing business and that cost should not be on the employee who's making these low wages but on the employer or at least more balanced and that's what these laws are trying to do. I think that's an important point to highlight and sometimes gets a little confused in the discussions around these bills.

Branch Messenger: Yeah. So, if I'm a business, how do I know when a scheduling legislation is going to impact my business? Is there like a litmus test or what would be like the first thing I should think about regarding something like this?

Andrea Johnson: So, a lot of the laws that have been enacted apply to larger employers in these industries that I've mention. A lot of these employers are using scheduling software already which allows them to schedule very tightly to a T and with or without employee input and oftentimes it's without employee input. The scheduling software can be used for good and can be used to respond to these laws. So, these laws are impacting more so the larger employers that have more resources that might be using the scheduling software and are thus more easily in a position to adapt to them and use that scheduling software for good. I think the Gap study provides a lot of good … additional incentive beyond just having workers that are treated with dignity and respect and are healthy. Those are all good reasons to have these scheduling practices but now the Gap study really provides some bottom-line evidence of bottom-line benefits of these laws.

Branch Messenger: So, currently there's various different cities and states that have this legislation. So, what if I'm a company that's headquartered in say Minnesota and there's not really a legislation there on the books but I have an office or employees in a state that is being impacted, how does that work when you have … especially when you're dealing with retail and restaurant locations that maybe chains and may be located in many different states, how does the legislation work for those types of employers or companies?

Andrea Johnson: So, this is an issue that comes up a lot since … a lot of the issues we're working on are gaining momentum in states. There's not been much progress at the federal level but states are acting to put in place strong protections to protect women and families and other workers. So, we've been encouraged to see some employers say, "We recognize that this is a best practice to across the board, across all of our branches, all of our companies to implement this practice whatever is the strongest standard in whatever state to take that as a company wide practice." That's always something very heartening to see. There's a good business reason for doing that and also just practically it can make life easier instead of trying to adjust to these different standards, to adopt the strongest standard. We hope them business will do that for all the business reasons that I've listed before.

Branch Messenger: So, I think you're bringing up a good point. That was kind of a question I was going to ask next is, what do you recommend for companies that are currently operating at states that don’t have this legislation, what can they do today to get to match the standards before they become legislation in their current areas?

Andrea Johnson: I think it makes sense to look at the resources that we'll send out to take a look at what the laws are have been in the books and some that haven’t passed yet. The fact sheet we'll send around will talk about these different types of protections. Some have passed in many states. Some have only passed in a few places but look at all of them and ask yourself what can you do to implement these. Looking at the Gap study and some of the other research that's out there making the business case for these protections because it really does benefit your bottom-line.

A lot of times we're focusing on these short-term cost, the short-term labor cost but that's not the truly accurate business metric. I mean it's a flawed business metric. We need to be thinking about these other costs like turnover and lower productivity that comes from employees who are incredibly stressed, who's children’s health is being affected because they're incredibly stressed as they're trying to cobble together child care at the last minute and deal with their second job while trying to deal with unpredictable schedules in both jobs. Thinking about those is really important. So, yeah.

Branch Messenger: We're getting some questions in here from some of our attendees. Are there any examples and this might be a tougher question to address and again it might be more of a cultural question, but what employees are doing this best? It probably like a forward-thinking company that maybe took advantage of thinking about this long before the legislation came in place or is there an example of a … that would be like a sea-change moment there for a company or is there a company that is doing a really good job of this now that the legislation has been passed?

Andrea Johnson: Yeah. So, Costco is a company that we look at often and I think they were doing some good scheduling practices even before a legislation passed. So, again, yeah, for employers looking for models about how to do this, they would be one to look at. Then, I feel like a broken record but going back to the Gap study just since it was really helpful to see they did a controlled study of a number of different factors and see how those worked out. You can look at Gap and that study specifically. So, yeah.

Branch Messenger: I think you kind of touched on this again but for someone who may have coming to the webinar a little bit late, what does the future look like for this legislation? Do you predict it will continue to roll out across the United States getting adoption in all 50 states? What's your opinion there?

Andrea Johnson: Definitely. Just talking to advocates, talking to legislators on the ground. I mean this is relatively new area of labor law. It's been around for … we've been discussing this for many years it feels like, but it is relatively new. I think folks are making the connection between other issues that are definitely moving in the states like minimum wage increases, like paid leave and paid sick days.

We've seen a lot of movement in the states on those issues and they're recognizing that scheduling is a piece of the puzzle in that to really get the protections we need in order to work with dignity, to work safely, to work and be healthy and care for our families which is something we all want that we also need these scheduling protections. So, there are some fights that are maybe more immediate but I think this is the next one and there's definitely increasing momentum.

Branch Messenger: Excellent. With that being said, Andrea I'd like to really take the time from all of us at Branch Messenger to say thank you for taking time out of your busy schedule to talk with us today about what we think is an important topic in the world of the workplace. We'll be passing out a transcript of this on our blog following today as well as wrapping up some future blog posts that hit on some of the individual points you talked about with graphics, about the states and the cities that are currently having legislation come down the pike or that has passed especially talking about the provisions. Thank you everyone for attending. thank you very much Andrea for taking time to speak with us today.

We really appreciate it!

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