Summary

There is growing recognition that unpredictable, unstable, and often insufficient work hours are a key problem facing many U.S. workers, particularly those in low-wage industries. Volatile hours not only mean volatile incomes, but add to the strain working families face as they try to plan ahead for child care or juggle schedules in order to take classes, hold down a second job, or pursue other career opportunities.

In response to these concerns, several state and local governments have recently (between 2014 and 2017) enacted “fair workweek” laws. Five cities and one state have passed comprehensive fair workweek laws, which address a wide range of concerns faced by workers. These laws provide workers with greater stability, predictability, and flexibility in their work schedules; in many cases, they also require employers to give part-time staff opportunities to increase their hours before adding new staff. These comprehensive laws primarily apply to retail and fast-food workers—who are more likely than other workers to be subject to volatile work hours. The nearly 740,000 workers protected by these comprehensive fair workweek laws include an estimated 327,000 workers in New York City; 175,000 in San José; 172,000 in the state of Oregon; 40,000 in Seattle; 23,000 in San Francisco; and 2,500 in Emeryville, California.

In addition to these comprehensive fair workweek laws, New Hampshire, Vermont, and San Francisco have passed “right-to-request” statutes—which grant all or most private-sector workers the right to request scheduling accommodations. While these fair workweek laws are more limited in scope, they apply to a broader segment of the workforce: Over a million workers now enjoy increased workplace flexibility because of right-to-request laws.

This report describes the fair workweek laws that have been passed in these eight jurisdictions, and presents data on how many workers are protected by these laws.

Introduction

Employers in some industries have increasingly adopted scheduling practices that leave workers in desperate need of additional work yet hampered in their ability to actually seek supplemental work elsewhere or find a new job altogether. Aided by new technology that allows businesses to track sales and customer flows with precise detail, some employers now use algorithms to automatically set workers’ schedules based on predicted customer traffic, often on an hourly basis. Schedules are provided—and frequently changed—with little to no advance notice, sometimes requiring employees to remain “on call” to come to work at the drop of a hat. Many workers are required or pressured to maintain “open availability” for all hours the store is open, giving them little input into the days and times they will work. Workers’ schedules are often inconsistent from week to week, and some businesses require staff to call in at the beginning of each week—or even at the beginning of each day—to obtain their schedules. Many people are assigned fewer work hours than they would like, involuntarily working part time when they would prefer to work full time. Others are required to work long hours (with or without overtime pay), sometimes on short notice. These practices effectively shift more of the risk and costs of doing business from firms onto their employees.1

Irregular and unpredictable schedules result in a host of serious problems for working people and their families. They create volatile incomes, adding an additional barrier for families trying to manage their budgets and plan for the future. They also make it difficult for workers to explore other job opportunities. As explained in Golden 2015, irregular and unpredictable schedules can lead to increased work−family conflict for affected workers. And Morsy and Rothstein (2015) found that children whose parents work nonstandard work schedules are more likely to have lower cognitive and behavioral outcomes.

In response to harmful scheduling practices, five cities and three states have recently enacted “fair workweek” laws to protect employees. These laws ensure that workers’ time is respected and appropriately valued. A growing body of research has also found that increasing predictability, stability, and flexibility of worker schedules can lead to higher productivity and increased sales for retail stores (Williams et al. 2018; Ton 2012), so such laws can also benefit employers and the greater economy.

The state of Oregon has passed a comprehensive statewide fair workweek law, and the cities of Seattle, New York City, San Francisco, San José, and Emeryville, California, have all enacted comprehensive protections at the local level. Each policy is slightly different in its specifics, but the policies generally include provisions such as advance notice of work schedules, additional compensation for unexpected schedule changes or “on-call” hours, the right to accept or decline added or lengthened shifts, mandatory “rest periods” between shifts, and the right to request scheduling accommodations. These comprehensive fair workweek laws apply primarily to people working in chain retail stores and in fast-food restaurants but, in some cases, extend beyond those industries.

In addition, Vermont, New Hampshire, and San Francisco have enacted “right-to-request” laws—more specific fair workweek laws that focus on the right to request scheduling accommodations; these laws give all or most private-sector workers in these jurisdictions the right to a protected voice in their work hours.

The details of these laws—the specific protections provided and which workers are covered—are described in the sections below.

Impact of recently passed comprehensive fair workweek laws

While it is too early to measure the full impact of these protections, we can estimate the number of people who now enjoy greater legal protection against erratic scheduling practices because of comprehensive fair workweek laws. As shown in Table 1, these fair workweek laws now cover nearly 740,000 workers in the five cities and one state where they have been enacted thus far. (This is likely a conservative estimate, as explained in the methodological discussions below.) The largest impact is in New York City, where approximately 265,000 retail workers and 62,000 fast-food workers have gained additional protections under the law. In San José, roughly 175,000 private-sector workers are covered under the law. Coverage levels for the other localities are listed in Table 1.

City of San Francisco: Formula Retail Employee Rights Ordinances (March 2016)

San Francisco’s Predictable Scheduling and Fair Treatment for Formula Retail Employees and Hours and Retention Protections for Formula Retail Employees Ordinances (known collectively as the Formula Retail Employee Rights Ordinances [FREROs]) went into effect on March 1, 2016 (San Francisco OLSE n.d. “FREROs”). These ordinances require employers to provide employees with an estimate of weekly work hours prior to start of employment, two weeks’ notice of schedules, and compensation for shifts changed with less than seven days’ notice, with additional compensation for last-minute schedule changes and on-call shifts. The laws also guarantee “part-time parity,” which prohibits discrimination in wages, promotion opportunities, and access to time off on the basis of part-time status. The ordinances apply to employees at chain retail establishments with at least 40 locations worldwide and at least 20 employees in San Francisco, including subcontracted building services workers.2

An estimated 23,000 workers in San Francisco are impacted by these two ordinances (Table 1). The number of workers impacted was calculated by the Center for Popular Democracy using data acquired from public officials through a public records request.

City of San José: Opportunity to Work Ordinance (March 2017)

San José’s Opportunity to Work Ordinance went into effect on March 13, 2017 (San José OEA n.d.). The ordinance requires employers to offer additional hours to existing, qualified part-time employees before hiring more employees, including subcontractors or temporary staffing services. The ordinance applies to hourly employees at businesses with 36 or more employees worldwide.

To determine the number of workers impacted by San José’s Opportunity to Work Ordinance, we first identify total employment in the city of San José from the Census Bureau’s 2016 five-year American Community Survey (ACS); total citywide employment is shown in Table 2, column 1. We then adjust that total by the private-sector share of total employment in the San José-Sunnyvale-Santa Clara, CA metropolitan statistical area (MSA) (column 2), as reported in the 2016 Quarterly Census of Employment and Wages (QCEW) from the Bureau of Labor Statistics (BLS). Because the ordinance applies only to firms with 36 or more employees, we then adjust the count by the share of private employment at firms with over 50 employees for the San José-Sunnyvale-Santa Clara, CA MSA (column 3) from the Census Bureau’s Quarterly Workforce Indicators (QWI) data for 2016. Finally, we multiply the worker count by the national share of workers who are paid on an hourly basis (column 4), as reported in the BLS 2017 Current Population Survey, to get our final estimate of 174,786 (column 5). We round our estimate to 175,000 in Table 1. Note that because our threshold for firm size (in column 3) is larger than is specified in the ordinance (because of limitations of available data), our estimate is likely an undercount. Further, since the law applies to establishments with 36 or more employees worldwide and we are using firms with 50 or more employees in San José-Sunnyvale-Santa Clara, CA MSA, we are likely further underestimating the number of workers impacted.

City of Emeryville, California: Fair Workweek Ordinance (July 2017)

Emeryville’s Fair Workweek Ordinance went into effect on July 1, 2017 (City of Emeryville n.d.; Emeryville City Council 2016). It requires employers to provide employees with an estimate of average weekly work hours prior to start of employment, two weeks’ notice of schedules, and compensation when the employer makes changes to the posted schedule, and it allows employees to decline last-minute shift additions. Employers must also offer additional hours to existing employees before hiring new staff. The law guarantees employees 11 hours’ rest period between shifts and a protected right to request scheduling accommodations. This ordinance applies to retail firms with 56 or more employees globally and to fast-food firms that employ 56 or more people globally and 20 or more people in Emeryville.

The impact analysis for Emeryville’s Fair Workweek Ordinance is based on city government estimates (City of Emeryville 2016). These estimates indicate that approximately 2,500 workers are impacted (Table 1).

City of Seattle: Secure Scheduling Ordinance (July 2017)

Seattle’s Secure Scheduling Ordinance went into effect on July 1, 2017 (Seattle Office of Labor Standards n.d.). It requires employers to provide employees with an estimate of average weekly hours prior to start of employment and to periodically update the estimate. Employers must provide two weeks’ notice of schedules and compensation when the employer makes changes to the posted schedule and must allow employees to decline last-minute shift additions. Employers must offer additional hours to existing employees before hiring new staff. The ordinance also guarantees 10 hours of rest between shifts. Employees have a protected right to provide input into their work schedules without retaliation; employers have to evaluate and respond to work schedule requests. If the requests are based on accommodating caregiving obligations, education, a second job, or the employee’s own health needs, the employer must provide a bona fide reason for rejecting the request. This ordinance applies to hourly employees of retail businesses, fast-food establishments, and some sit-down restaurants, with 500 or more employees worldwide.

To determine the number of people impacted by Seattle’s Secure Scheduling Ordinance (Table 3), we first calculate the total number of workers in the retail and fast-food industries in the city of Seattle using 2015 and 2016 data from the Puget Sound Regional Council (PSRC 2017). PSRC provides data on the number of workers in the accommodation and food services industries in Seattle. In order to estimate the subset of these workers who are employed in fast food, we multiply the total number of workers in the accommodation and food service industries in Seattle by the share of accommodation and food service workers that work in fast-food restaurants, calculated at the county level using QCEW data from the Bureau of Labor Statistics. The resulting total industry employment numbers are recorded in Table 3, column 1. We then multiply by the share of workers in the retail trade and accommodation and food service industries that work in firms with 500 or more employees, using 2016 QWI data at the Seattle-Tacoma-Bellevue, WA MSA level. Finally, we multiply by the share of workers who are nonsupervisory in each industry, calculated at the national level using 2016 Current Employment Statistics (CES) survey data, to produce our estimate of the total covered workforce, 39,860. We round this number to 40,000 in Table 1. Since the law applies to establishments with 500 or more employees worldwide and we are using firms with 500 or more employees in the MSA, we are likely underestimating the number of workers impacted.

State of Oregon: Fair Work Week Act (August 2017)

Oregon’s Fair Work Week Act was enacted on August 8, 2017 (Oregon House Democrats 2017). This law requires employers to provide employees with an estimate of work hours prior to their start of employment and two weeks’ notice of schedules (phasing in from one week on the effective date to two weeks a year later). It also mandates compensation for changes to the posted schedule and protects employees from retaliation when they request scheduling accommodations. The act prohibits last-minute shift additions without the employee’s consent and gives employees the right to 10 hours of rest between shifts. Oregon’s law applies to hourly employees of retail, hospitality, and food service firms with over 500 employees worldwide.

To determine the number of people affected by Oregon’s Fair Work Week Act (Table 4), we take the number of workers in the retail trade and accommodation and food service industries in Oregon, as reported in the QCEW for 2016, and multiply by the share of each industry’s workforce in firms with 500 or more employees nationwide from the QWI data. We then multiply by the national share of workers who are nonsupervisory in each industry, calculated at the national level using 2016 Current Employment Statistics data, for a final estimate of 171,582. We round this number to 172,000 in Table 1. Since the law applies to establishments with 500 or more employees worldwide and we are using the share of firms with 500 or more employees nationwide, we are likely underestimating the number of workers impacted.

New York City: Fair Workweek Law (November 2017)

New York City’s Fair Workweek Law went into effect on November 26, 2017 (NYC DCA 2017a, 2017b). It requires fast-food employers to provide employees with an estimate of weekly hours, days, and times of work prior to their start of employment and two weeks’ notice of schedules. It also mandates compensation for changes to the posted schedule and guarantees 11 hours’ rest between shifts. Employers must also offer additional hours to existing employees before hiring new employees. It applies to employees at fast-food chains with at least 30 locations in the U.S. who perform any of the following tasks: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, and routine maintenance. The Fair Workweek Law also requires retail employers to provide employees with 72 hours advance notice of schedules, and it forbids last-minute shift additions without the employee’s consent, last-minute shift cancellations, and on-call shifts. This law applies to retail employees of firms with 20 or more employees in New York City.

To determine the number of people impacted by New York City’s Fair Workweek Law (Table 5), we first calculate the total New York City employment in retail trade and fast food from the 2016 QCEW (column 1). For retail trade, we multiply by the share of employment with 20 or more employees (column 2), according to the 2016 QWI data for the New York City MSA, to get an estimate of 264,567 retail workers covered. For fast food, we multiply that by the share of workers in that industry who are nonsupervisory (column 3), calculated at the national level using 2016 CES data, to get an estimate of 62,396 fast-food workers covered. Because the legislation impacts all retail trade employees at firms with 20 or more employees, we do not adjust by the nonsupervisory share of employment for retail trade employees. Our total estimate of the number of workers covered under New York City’s Fair Workweek Law is 326,963. We round this number to 327,000 in Table 1.

Impact of recently passed right-to-request laws

Vermont, New Hampshire, and San Francisco have enacted fair workweek laws known as “right-to-request” laws, which protect the right of all workers to have a voice in their schedules. At a minimum, these laws prohibit retaliation against workers who request flexibility in their work hours or work location. In some cases, employers are also required to respond to requests in writing.

While we cannot measure all aspects of the economic impact of these protections, we can estimate the number of people who now enjoy greater legal protections when requesting flexible scheduling because of these laws. As shown in Table 6, these fair workweek laws now cover more than 1 million workers in the two states and one city where they have been enacted thus far. (This is likely a conservative estimate, as explained in the methodological discussions below.) The largest impact is in New Hampshire, where approximately 614,000 workers have gained additional protections under the law. Coverage levels for all localities are listed in Table 6.

San Francisco: Family Friendly Workplace Ordinance (January 2014)

San Francisco’s Family Friendly Workplace Ordinance went into effect on January 1, 2014 (San Francisco OLSE n.d. “FFWO”). When an employee requests flexibility to care for a dependent, this law requires the employer to meet with them within three weeks and then respond to the request in writing within three weeks of the meeting. If the employer denies the request, it must be in writing and based on a bona fide business reason, and the employer must allow the employee to seek reconsideration. The law also prohibits retaliation against employees who request flexibility. The law covers all private-sector employees in businesses with at least 20 employees worldwide.

To determine the number of people impacted by San Francisco’s Family Friendly Workplace Ordinance (Table 7), we first calculate the city’s total employment using American Community Survey (ACS) five-year estimates for 2012–2016. We then multiply that by the private-sector share of total employment in the San Francisco-Oakland-Hayward, CA MSA from the 2016 QCEW. We then multiply by the share of employment in these industries in firms with 20 or more employees, according to the 2014–2016 QWI data for the San Francisco-Oakland-Hayward, CA MSA. Finally, we multiply that by the national share of workers who are hourly from the 2017 Current Population Survey, to get our estimate of 177,372 total covered workers. We round our estimate to 177,000 in Table 6. Since the law applies to establishments with 20 or more employees worldwide and we are using firms with 20 or more employees in San Francisco-Oakland-Hayward, CA MSA, we are likely underestimating the number of workers impacted.

Vermont: Flexible Working Arrangements Statute (January 2014)

Vermont’s Flexible Working Arrangements Statute went into effect on January 1, 2014 (Vermont General Assembly n.d.). This statute requires employers to consider employees’ requests for flexible schedules in good faith at least twice per calendar year. Employers must notify employees of their decision and must put their denial in writing if the request was made in writing. The statute also prohibits retaliation against employees who request flexibility. This law applies to all private-sector employees in Vermont.

To determine the number of people impacted by Vermont’s Flexible Working Arrangements Statute, we simply use the number of total private-sector employees for 2016 from QWI, which is 299,116. We round this number to 299,000 in Table 6.

New Hampshire: Act Relative to Flexible Working Arrangements in Employment (September 2016)

New Hampshire’s Act Relative to Flexible Working Arrangements in Employment (SB416) went into effect on September 1, 2016 (New Hampshire General Court n.d.). This statute requires employers to consider employees’ requests for flexible schedules in good faith at least twice per calendar year. Employers must notify employees of their decision in writing and provide a reason if the request is denied. The statute also prohibits retaliation against employees who request flexibility. This law applies to all private-sector employees in New Hampshire, except for nonprofit, agricultural, seasonal, and domestic work employees.3

To determine the number of people impacted by the New Hampshire right-to-request law, we simply use the number of total private-sector employees for 2016 from QWI, excluding the nonprofit, agriculture, and private household industries, and excluding 3 percent4 of employees in the following seasonal industries: scenic and sightseeing transportation; performing arts, spectator sports, and related industries; museums, historical sites, and similar institutions; and amusement, gambling, and recreation industries. The total number of covered workers is 614,199. We round this to 614,000 in Table 6.

Conclusion

Lawmakers in other states and cities are working to enact fair workweek protections similar to those enacted by these state and local governments. The Chicago Fair Workweek Ordinance, which was introduced to the Chicago City Council in June 2017, would require all employers in Chicago to give advance notice of schedules to their employees and would require that these employees be compensated for any last-minute schedule changes (Chicago Office of the City Clerk 2017). In Philadelphia, city council members are considering a fair workweek ordinance similar to the comprehensive fair workweek laws passed in Seattle and Oregon (Lozano 2018). If these laws are enacted, they will ensure that even more workers have predictable, stable, and healthier work schedules—and, in some cases, increased opportunities to work full time.

In the same way that campaigns for higher minimum wages, paid sick days, and paid family and medical leave have highlighted the need to update labor standards to reflect today’s economy, we hope and expect that lawmakers in more jurisdictions will also recognize that stable, predictable, and adequate work hours are essential to ensuring that workers, families, businesses, and communities can thrive.

Endnotes

1. For greater detail on these practices, see CPD 2018.

2. Because of data limitations, exact numbers of subcontracted building service workers are not included and the estimate of San Francisco workers impacted is therefore likely underestimated.

3. Nonprofit, agricultural, domestic, and seasonal workers are excluded under the definition of “employee” in Chapter 275, Section 36, of the New Hampshire Labor Code.

4. Three percent is the estimated share of workers in these industries who are seasonal employees.

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