Workers’ control over their schedules and abusive scheduling practices have grown more significant as the American workforce has changed over the last decade, with women becoming half of all workers and the tremendous growth of hourly low-wage work. Here we lay out the economic context for scheduling problems, discuss the few laws that reach work schedules, and outline some of the recent proposed policy solutions to these emerging problems.
The Context: The Rise of Economic Uncertainty for Working Families
Many workers struggle in jobs with stagnant, low wages and few benefits. However, in recent years more workers must be available to work without any guaranteed hours and with schedules that fluctuate dramatically from week to week with little notice. Arranging for child care, getting another job to make rent, or pursuing additional education is impossible with such unpredictable, unstable schedules. These emerging scheduling trends are fostering pervasive economic insecurity and employment instability for a growing number of workers.
Unpredictable, Hourly Work. Today 75.3 million Americans—almost three in five wage and salary workers—are paid by the hour.1 Among these hourly workers, over 27 million work part-time.2 The trends toward hourly and part-time work are increasing: job growth is fueled by the expansion of low-wage, no-benefit jobs in industries such as retail, restaurants, and health care, which rely on a large part-time workforce.3
A recent national survey of early career adults found that among the 74 percent of hourly workers who reported schedule fluctuations, the number of hours they worked per week fluctuated wildly.4 For part-time workers, fluctuation in weekly work hours was extreme: 87 percent.5 Of all hourly workers, 41 percent reported that they knew their work schedule a week or less in advance.6
Arranging for child care, getting another job to make rent, or pursuing additional education is impossible with such unpredictable, unstable schedules.
Shifting the Risks of Doing Business. These trends of hourly and part-time work are emerging in an environment with few labor policy protections and weakened worker bargaining power. While unionization rates are at a historically low point, workforce management technologies are more sophisticated and have resulted in a new phenomenon of microscheduling. Technologies, distributed by companies such as Kronos and Dayforce, enable employers to adjust workers’ schedules to match the real-time ebb and flow of commerce and to monitor workers’ productivity, forcing the lowest-paid workers to work harder and to absorb substantial fluctuations in hours and earnings. Software algorithms are programmed to reduce labor costs without consideration of the chaos generated in the lives of workers.
Abusive Scheduling Practices. To even enter this world of precarious work, employees need to be constantly available and must forfeit other productive opportunities on the chance their employer might call upon them to work. Arranging for stable child care or setting up healthy family routines is made even more difficult with ever-changing workweeks. Women in retail are pushed involuntarily into low-quality part-time positions because their caregiving responsibilities do not allow them to meet scheduling expectations for “open availability.”
For those who prefer to work full-time, being pushed into part-time work can have serious economic consequences: hours are lacking, and part-time workers earn lower hourly wages and do not qualify for employer-provided benefits. The poor quality of part-time work widens the pay gap for women and people of color.7
Hourly workers have almost no say in their schedules and do not have the right to request the most basic accommodations. Half of early career hourly workers reported that their employer determined when their workday started and ended, while only 16 percent reported that they decided the timing of their hours either freely or within parameters set by their employer.
Workers are expected to be on-call without compensation, and if they are unable to report to work, they are punished with diminished hours. Employees can show up for a full shift and pay transportation costs and arrange child care for the day and then be sent home upon arrival because of slack business. In that scenario, employees actually lose money by going to work.
The trend toward contingent employment threatens to undermine recent strides, such as minimum wage, earned sick time, and access to child care, in policies for working families, and the trend for the long term threatens the progress of women and people of color. Unpredictable part-time scheduling contributes to the gender and race gap in pay and advancement. Achieving equitable part-time employment and family-sustaining schedules needs to be a core priority for reducing inequality in our country.
Few legal rights allow workers to assert control of their schedules or curb abusive scheduling practices. However, some states have set a minimum standard for hours and schedules as part of their wage-and-hour laws. For example, “reporting-pay” laws require a minimum amount of pay for a worker when the worker is required to come to work even if the worker is sent home or given less work than anticipated. Some states have “split-shift” or “spread-of-hours” laws that require extra pay when workers are given shifts with long waiting times between the end of one shift and the beginning of the next. Vermont and San Francisco have tried something new—the right to request flexible schedules without retaliation.
Software algorithms are programmed to reduce labor costs without consideration of the chaos generated in the lives of workers.
Reporting-Pay Laws. Reporting-pay laws require employers to compensate workers who are required to report to work but are sent home with no work or before the conclusion of their shift. Many of these laws require a minimum number of hours for any worker called in for work that day and thereby insure that shifts for those who do work will yield a minimum amount of pay.
Eight states (California, Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Oregon, and Rhode Island) and the District of Columbia have reporting-pay laws.8 The requirements are either part of the state’s minimum-wage law or part of regulations implementing minimum-wage laws. Those laws vary in who is covered, the minimum number of hours the worker will be paid, and the rate of pay. They also vary in whether the requirement of minimum hours of pay applies only if the worker is sent home or whether the requirement creates a minimum entitlement to hours of pay for all workers whenever they are required to come to work.
Most of the laws cover all nonexempt workers, although Connecticut’s law applies only to certain industries.9 Massachusetts exempts charitable organizations, and New Hampshire exempts public workers.10 Oregon’s law applies only to minors.11
The number of hours that must be compensated and the required rate of pay vary as well. The District of Columbia and the general rule in New York require four hours of pay at the minimum wage (or pay for the worker’s shift, whichever is less) when a worker comes to work and is sent home with no work.12 The Massachusetts requirement applies only if the worker was expecting to work three hours or more, in which case the employer pays three hours at the minimum wage if the work is not available when the employee reports.13 In California a worker is eligible for reporting-time pay if the worker is required to report for work, does report, and is not given work or is given less than half of the scheduled day’s work; the worker is then entitled to half-pay at the worker’s regular pay rate for the scheduled work hours that day.14
Connecticut, Rhode Island, New Jersey, New Hampshire, and New York’s wage orders for hospitality workers require pay for a minimum number of hours for all workers called in whether they work or are sent home. In Connecticut, mercantile workers are entitled to four hours of pay at their regular pay rate on any day they work, but restaurant workers are entitled to only two hours of pay at minimum wage.15 The Rhode Island reporting-pay law requires a minimum of three hours of work at a worker’s regular wage rate whenever the worker is called in; if a worker is called in and given no work, the worker is entitled to three times the regular hourly pay rate.16 New Jersey law requires a minimum of one hour of pay at the applicable pay rate for any worker who comes to work at the request of the employer.17 In New York, hospitality workers must be paid at least three hours for one shift, six hours for two shifts, and eight hours for three shifts unless their regularly scheduled shift is for fewer hours.18 The New Hampshire law guarantees a minimum of two hours of pay when an employee is required to report for work unless the worker is hired to work fewer than two hours in a day and the worker both receives notification and signs consent to that schedule.19
Case law interpreting reporting-pay provisions is limited. California courts have interpreted whether reporting-time pay should be applied when workers are called to meetings on days they do not usually work: if the meeting is scheduled in advance and the employee knows how long the meeting will last and is paid for that time, the worker is not entitled to reporting-time pay, but if a worker is called into work without prior notice and is not paid, the reporting-time pay law requires at least two hours of pay.20 A New Hampshire court held that reporting-time pay applies to unscheduled work only; therefore an employer did not owe reporting pay to fitness instructors who were regularly scheduled for one-hour shifts and were never called in for unscheduled shifts.21
The reporting-pay laws, although they offer protections, are rarely used. Enforcement of these laws has been a serious challenge. Many workers do not know about these rights. Unlike minimum wage, which has many posting requirements, the details of scheduling provisions are rarely required to be posted, and workers remain in the dark. Even when workers are aware that they should get some compensation when they are asked to come in and then are sent home, entitlement to reporting pay can be difficult to prove. Being asked to come in and then sent home is not documented. The pay stub will probably not record those hours or whether any pay was received for those hours. Many employers now use just-in-time scheduling rather than advance scheduling, and so workers may be called in to work hours that never appear on a schedule; nothing documents that the workers were required to report at a certain date and time. Even when a worker is on a schedule, software may automatically erase that entry when the shift is cancelled. Questions of coverage may arise when workers en route are contacted by their employer and told not to come in after they have incurred transportation or child-care costs.
Split Shifts and Hours Spread. Another problem for shift workers is being assigned in one day two shifts that have long periods between them for which the workers are not paid. For example, some bus drivers reported working a shift from 6:10 a.m. to 11:10 a.m. and then from 5:15 p.m. to 9:45 p.m.; they worked over 16 hours in a day but were paid for only 9.5 hours of work. Due to the distance between company headquarters and workers’ homes, workers must find a place in the vicinity of the business to pass the time until their second shift. Many workers find it difficult to do anything with time between shifts—they could be holding another job or scheduling school classes.
Some states require additional compensation when workers are forced to work nonconsecutive hours or “split shifts.” In both California and the District of Columbia, if a worker is required to work a split shift (not counting mealtimes), the worker is entitled to one hour of pay at minimum wage.22 However, the courts in California have held that if a worker’s pay on a day of a split shift is already more than what the worker would make at the minimum-wage rate with an additional hour included, the worker is not entitled to the extra hour of shift pay.23 In New York, workers other than hospitality workers are entitled to one additional hour of pay in any day with a split shift. Workers in all sectors are entitled to an additional hour of pay at the full minimum wage where the spread of hours for the day exceeds 10 hours because of a gap in shifts.24
Whether these “spread-of-hours” and “split-shift” laws apply to all workers or only those who receive minimum wage is in some dispute. Federal courts have held both that spread-of-hours pay is available to all workers and that the additional pay is available only to workers whose average wages for the day would be minimum wage or less.25 Split-shift pay is available whenever a break other than meal breaks is required between work times; however, a lack of case law leaves unclear whether the provision applies if the average pay to the worker for the day is above the minimum wage.
Right to Request Flexible Work Hours. “Right-to-request” laws are a response to the need to give workers more control over their schedules. With a majority of parents with children under 18 in the workforce, and four in ten adults caring for sick or elderly family members, workers at all income levels report difficulties in balancing their family responsibilities with work.26As noted above, low-wage workers are hit the hardest as they grapple with schedules that are inflexible, unpredictable, and unstable. Roughly half of low-wage workers report having very little or no control over their schedules.27 Two-thirds report having insufficient time for their children.28
Roughly half of low-wage workers report having very little or no control over their schedules.
England first tried creating a legal right for workers to request different or more flexible schedules. Access to flexible work and schedule changes did improve as a result of a law that required employers to engage with the worker about the worker’s schedule, to give reasons for denying requests, and not to retaliate against the worker for asking for a schedule change. In the United States advocates have worked at the federal level for several years to enact a similar “right-to-request” law. Sen. Edward M. Kennedy introduced such a bill in 2007; the bill has been reintroduced several times but has not been enacted.
By contrast, in the last year both Vermont and San Francisco have enacted laws requiring employers to allow workers to request changes in their work schedules. Recognizing that the lack of control over work schedules is an enormous factor in the gender wage gap, Vermont legislators made the right to request schedule changes part of broad equal-pay legislation. The Vermont right-to-request law applies to all employees and allows any employee to request a “flexible working arrangement,” defined as “intermediate or long-term changes in the employee’s regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing” and does not include vacation, other forms of leave, or routine scheduling of shifts.29 The law requires a good-faith discussion of the worker’s request during which alternatives may be proposed and the employer considers whether the request can be granted consistent with business operations and legal and contractual obligations.30 The employer is required to notify the employee of the decision.31 The law protects workers against retaliation.32 The U.S. attorney general, the Human Rights Commission, or the state’s attorney general enforces the law; no private right of action is included.33
Low-wage workers are hit the hardest as they grapple with schedules that are inflexible, unpredictable, and unstable.
The San Francisco right-to-request law, called the San Francisco Family Friendly Workplace Ordinance, applies only to workers who have caregiving responsibilities for a child, a parent over 65, or a seriously ill family member.34 Those workers can request a “flexible or predictable working arrangement,” defined as the number of hours required to work, the times and place required to work, work assignments, or a predictable work schedule.35 The request has to be in writing, and generally only two requests may be made in a 12-month period.36 The employer must meet with the employee to discuss the request within 21 days and must grant or deny the request within 21 days of the meeting. If the request is granted, the details of the new arrangement must be in writing. If the request is denied, the employer must explain the denial in writing and include the “bona fide business reason” for the denial and inform the worker of the worker’s right to ask for reconsideration within 30 days. Bona fide business reasons are listed in the law and include cost, detrimental effect on customer demand, inability to reallocate work, and insufficiency of work when the employee requests work.37 Retaliation against the employee is prohibited.38 The law is to be enforced by the Office of Labor Standards Enforcement in San Francisco.39
Advocates around the country are working on other right-to-request proposals that would build upon existing legislation to increase its impact, particularly for low-wage workers where unpredictable shifts are particularly serious. As advocates develop new laws, they are exploring whether these laws should apply universally or only for certain purposes, whether there should be a right to receive flexible working arrangements under certain circumstances, and whether the right to request a change in schedule can be a vehicle for requiring that workers have a schedule and be notified of any changes in it.
Recent Legislative Proposals
Efforts are under way to create new policies to fix emerging scheduling issues that harm workers and their families. For example, the Schedules That Work Act was introduced in Congress in July 2014.40 Sponsored by George Miller and Rosa DeLauro in the House of Representatives and by Elizabeth Warren and Tom Harkin in the Senate, the bill tackles the problems that workers face due to their lack of control over their schedules. The bill contains sections on the right to request and receive a flexible work schedule, reporting-time pay, split-shift pay, and advance notice of work schedules. The bill has a robust enforcement section and provisions for research, education, and technical assistance on scheduling issues.
The right-to-request portion of the bill applies to all workers in businesses of 15 or more workers and is similar to the Vermont and San Francisco laws in structure. It allows workers to apply to the employer for a change in the terms and conditions of their employment with respect to the number of hours worked, the times they are required to work or be on call, the location of the work, the amount of notification they received for changes in their work schedule, and the fluctuation in work schedules. The employer must interact with the employee and either grant or deny the request. If the request is denied, the employer must consider alternatives and give reasons for the denial.
What makes the Schedules That Work Act different from existing right-to-request laws is this: if a worker requests a schedule change because of a serious health condition of the worker, the employee’s responsibilities as a caregiver, a careerrelated educational program, or (for a part-time worker) the need for a second job, the request must be granted unless a bona fide business reason supports denying it.41
The legislation contains certain requirements that pertain only to workers in the retail, food services, or cleaning industries with respect to reporting-time pay, split-shift pay, and predictability:
- An employee must receive reporting-pay of four hours at the employee’s regular rate of pay whenever the employee reports to work due to instructions from the employer but is given fewer than four hours of work, unless the employee’s scheduled work hours were fewer than four, in which case the employer must pay for those scheduled work hours. An employee is entitled to at least one hour of pay at the employee’s normal rate of pay if the employee is given specific instructions to contact the employer or wait to be called by the employer less than 24 hours in advance of a potential work shift.
- Workers are entitled to an extra hour of pay at their regular rate of pay for any day they have to work a split shift, which is defined as any schedule for a day that requires hours to be worked that are not consecutive (with the exception of an hour for mealtime).
- Workers must receive a schedule on or before their first day of work; the schedule must include the minimum number of hours the workers are expected to be assigned and a schedule of those hours for each month. If the schedule or the number of expected hours changes, the worker must be so informed 14 days before the start of the new schedule. If any changes in the worker’s schedule are made less than 24 hours before the change takes effect, the worker is entitled to one hour of extra pay at the worker’s regular rate of pay; the only exception is when the schedule change is necessary due to the unexpected unavailability of another worker.
The federal bill contains several remedies for low-income workers’ scheduling problems. However, federal action is unlikely in the near future, and, in the meantime, bills have been introduced around the country at the state and local level where broader solutions may be possible.42 Most of these proposals cover all hourly workers subject to overtime requirements and require three weeks’ advance notice of schedule and additional pay when schedules are changed. Most of these bills contain expanded reporting-pay and split-shift requirements. Advocates are exploring other issues—such as part-time parity, access to full-time work, and caregiver discrimination—that could ease scheduling problems.
What You Can Do
Workers and policy advocates are organizing, building power in the workplace, introducing legislation, and exploring legal tools to resolve scheduling issues. You can contribute to and join their efforts in certain ways.
Use Existing Laws to Help Clients. If you are in a state with laws that protect workers from certain scheduling practices, make use of those laws. Workers who have wage-theft cases or other wage-and-hour problems often have claims on reporting pay or shift splits. Those laws are underutilized, and so be aware of them.
Be Aware of Stories that Might Call Attention to Scheduling Abuses. Scheduling problems are relatively new and need to be highlighted. National groups—our organizations, A Better Balance and the Center for Popular Democracy, as well as the National Women’s Law Center and the National Employment Law Project—are working both to call attention to these problems and to find solutions. Let us know if you have clients who would be willing to share their stories.
Get Involved with Coalitions Working on Scheduling Problems. Reporting-pay protections and other scheduling laws should be in effect around the country. Coalitions are working to improve laws at the state and local level to remedy many scheduling problems. Get in touch with us to learn more about what is happening in your state.Download this article