Fair Work Scheduling: Real Solutions and Phony Ones
American workers are increasingly concerned about how their employers schedule their work time, and for good reason. The spread of just-in-time scheduling, facilitated by computer programs that match employee shifts with customer traffic, is making life harder for the employees whose schedules are constantly changed, who report for work after long commutes only to find their hours have been cut—say from an expected eight that day, down to only one or two—and right at the last minute. That can make it close to impossible for workers to plan arrangements for child care, class schedules, or even transportation to and from work. Other employees are taken advantage of by employers who schedule them for long hours without advance notice, disrupting the same child care, education, and transportation schedules(though at least the excessive hours result in higher pay, if they’re covered by overtime protections and entitled to time-and-a-half for hours in excess of 40 in a week).
Politicians have two kinds of responses to these problems. Some are interested in real solutions, like the San Francisco Predictable Scheduling ordinance approved yesterday, which outlaws unpredictable scheduling practices at retail chain stores and promotes equal treatment of part-time workers. State law in California already requires employers to compensate employees who report to work but are given less than half their scheduled hours, and requires employers to pay for an extra hour of work when there are unpaid interruptions of the work day longer than a bona fide meal period.
Other politicians only pretend to do something for workers without doing it—or even make matters worse. A perfect example of that kind of fraudulent response is H.R. 1406, the House Republicans’ perennial answer to demands for improvements in the work-family balance. They call their bill the “Working Families Flexibility Act,” but the only flexibility it provides is to employers, rather than to employees. It gives employers the right not to pay anything for overtime hours in the week in which they are worked, but to instead consider giving time-and-a-half off with pay at some later point in the year. If it never turns out to be convenient, the employer has to repay the employee for her overtime at the end of 12 months. In effect, the bill authorizes an interest-free loan of the employees’ overtime pay with no guarantee of any time off.
What makes the Republican bill especially fraudulent is that current law already makes a better deal for employees possible. The Fair Labor Standards Act requires payment for overtime hours in the week they are worked but permits an employer to give time-and-a-half off from work as compensatory leave whenever the employer chooses. This is a much better deal for employees, who don’t risk losing their overtime pay if the employer goes bankrupt or terminates its business in the 12 months after the overtime is worked. Employers that genuinely want to compensate employees for long work hours already have the means to do so under the law. H.R. 1406 only helps employers that want to avoid paying overtime.
The phony Working Familes Flexibility Act has been trotted out in every Congress for about 20 years. Women’s groups and employee advocates understand that it is worse than current law, but that hasn’t stopped Representative Tom Price (R-Georgia) and the Republican leadership of the House of Representatives from promising to bring it up again next year. Real solutions, like the Schedules that Work Act, will likely be put off for a few more years.
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