Capitol Alert

Two weeks’ schedule notice for workers on California labor agenda

Having already raised one child through the abrupt cancellations, short notice and other challenges of the fast-food industry’s erratic scheduling, Holly Dias anticipates that another on the way will require a similar juggling act.

“A lot of stuff I should have been part of for (my son), I missed,” said Dias, who works at a Sacramento area Burger King. “Either I have to miss the doctor’s appointment or I have to miss hours, which means it’s going to be harder to pay the bills when they’re due.”

Sometimes, she said she got less than two days’ notice about when she would be working, and arranging child care was “a struggle.”

Unpredictable work schedules have become a predictable feature of life for millions of food and retail workers, academics and labor advocates say. Companies are legally allowed to give at-will employees as much notice as they like. Now organized labor is pushing a bill requiring service industry employers to give their workers two weeks’ heads up about when they will need to work.

“The trend in the industry has been where workers have less and less control over their lives,” said James Araby, executive director of the United Food and Commercial Workers Western States Council, Assembly Bill 357’s sponsor.

Another measure aimed at low-wage workers seeks to curb a growing practice among employers in which they opt to resolve workplace disputes through private arbitration. Often, new workers will sign away their right to resolve grievances in public forums such as the courts or before the state Labor Commissioner’s Office.

The two bills crown organized labor’s agenda in Sacramento this year and will likely confront resistance from industry groups.

California’s pre-eminent business lobby has described private arbitration as a swifter alternative to overloaded public courts and has branded the scheduling measure a “job killer.” A long list of detractors encompasses local chambers of commerce, the California Grocers Association and the California Restaurant Association.

“Employers generally try to do the right thing by employees and provide them with as much notice and as much ability to have their schedule in place as possible,” said Jennifer Barrera, a lobbyist for the California Chamber of Commerce, “but when there’s last- minute customer demands or last-minute employee demands, they need to have the flexibility.”

Backers say the scheduling bill addresses an economic shift that is reconfiguring the nature of work, making retail and service jobs the norm for adults, like Dias, who are relying on shift work – and often multiple jobs – to support families.

“These are jobs that are not just for high school workers making additional cash but are essential to working families,” said Assemblyman David Chiu, D-San Francisco, who carried a similar measure while on the San Francisco Board of Supervisors.

The bill would apply to retailers with at least 500 employees and 10 stores. It would impose penalties for altering work within a week of a shift, with exemptions for workers calling in sick or unexpectedly taking vacation, and would also allow workers to take time off for CalWORKs appointments – an acknowledgment, supporters say, that many workers cobble together part-time work and government assistance.

“If their employer is paying them so poorly that they’re relying on public benefits to feed their kids, the least the employer can do is give them time to stand in line and wait for their interview at the welfare office,” said Jessica Bartholow, a lobbyist for Western Center on Law and Poverty.

Labor experts say businesses have moved toward tightly linking the number of employees working to expected demand, often deploying sophisticated scheduling and forecasting software. Firms are using more part-time employees to enable more fluid schedules, according to Susan Lambert, a University of Chicago professor who studies employment.

“What’s driving it is this belief that labor is wasted when there’s not this immediate, pressing, obvious, consumer-driven need,” Lambert said, so managers are “very reluctant to post schedules ahead of time.”

San Francisco businesses are bracing for a local law that takes effect in July and mandates at least 14 days’ notice of schedules. San Francisco Chamber of Commerce policy expert Jim Lazarus said the approach neglects variation among businesses that use “different scheduling models, different software.”

“Scheduling is becoming a little bit more scientific,” Lazarus said. “Some companies have a policy of 10-day posting of scheduling, 7-day posting of scheduling. So a lot of the concerns are ‘we’re required to post 14 days, but in our industry or business that’s not realistic.’”

In addition to planning their lives around frenetic schedules, union officials say, low-wage workers often must contend with unpaid wages and other abuses.

The California Labor Federation is sponsoring Assembly Bill 465, which says employers cannot require employees to sign agreements that they will solve disputes exclusively with a private mediator, thereby blocking off venues like class action lawsuits or the state Division of Labor Standards Enforcement.

“Employers pay people in cash, make them work off the clock, routinely cheat them out of wages, out of overtime, out of meal breaks,” said Caitlin Vega, a lobbyist for the California Labor Federation, but by turning to handpicked arbitrators, employers have “insulated themselves from any real penalty.”

While the California Chamber of Commerce has not yet taken a position on the bill, the organization provided a policy document arguing that resolving labor disputes via private arbitrators can “reduce the already-overcrowded dockets of the court system.” Private arbitrators promise greater efficiency without sacrificing neutrality, the document says.

Unions and their legislative allies disagree. Assemblyman Roger Hernández, D-West Covina, who is carrying AB 465, argued that private resolution shifts the balance of power toward the employers who hire arbitrators.

“(Workers) get to the bottom line and they sign, and they’re not reading the small print,” said Hernández, “and unfortunately the small print often puts them at a disadvantage should they have a reason to have a dispute with their employer.”

Alisa Baker, a San Francisco-based attorney who largely represents corporate executives in labor disputes, said more employers are turning toward private arbitration because they believe it offers a better chance of success.

“The trend of the last 10 to 15 years has been to try and push every dispute into private arbitration and take it out of the courts,” Baker said. “It is just one of the most unfortunate developments.”

Arbitration can be fair, according to arbitrator and Sacramento State professor John B. LaRocco, when it sets management against a savvy opponent like a labor union that retains attorneys. But not all workers enjoy those advantages.

The average worker, LaRocco said, “doesn’t have the knowledge or information that a law firm or a union does.”

Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543.

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