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Reliable Scheduling: New Fight, Same Old Tricks

The Legislature is gearing up this week for one of the biggest fights of the year on Assembly Bill 357, which would provide fair and predictable scheduling for workers in California. The rhetoric opposing the bill is reminiscent of a similar fight 16 years ago on a bill to provide daily overtime pay, a fair scheduling policy that is now a cornerstone of our fair labor standards in the state and in the U.S.

Daily overtime laws had been on the books in some form in California since 1913, but were in large part repealed in 1998 under Governor Wilson. In 1999, when the Legislature introduced AB 60 to reestablish daily overtime, the Chamber of Commerce predictably labeled the bill a “job killer.”

According to the bill’s committee analysis, businesses claimed that “Relief from existing overtime rules…has earned employers millions of dollars and allows them to control their production schedules. Employers should be able to work employees 10 or 12 hours a day, without the penalty of overtime if competitive forces necessitate such work schedules. Flexibility would result in greater productivity and enhanced prosperity for all Californians.”

The refrain is almost identical today. Business groups have taken on AB 357 by arguing that employers should be able to change workers’ schedules at the very last minute without penalty if competitive forces necessitate such work schedules.

As it did in 1999, the Legislature should recognize that protecting working people outweighs maximizing the profits of large businesses. The same basic principles that were true in 1999 are still true today.

In the same way overtime laws affect employer scheduling practices – by imposing a premium or penalty on an employer for using overtime labor– and to compensate employees for the burden of a long week, AB 357 would impose a premium on an employer for last-minute scheduling changes. The power dynamic between employer and employee is already skewed in favor of the employer. Compensating employees for the burden of an erratic schedule is just a small incentive for employers to plan ahead so employees can do the same.

Only very large retailers are affected by AB 357. Businesses with 500 or more employees in the state would be required to provide workers with at least 14 days’ notice of their work schedule and would have to pay just one extra hour of wages if a change is made less than seven days in advance. If a change is made less than 24 hours in advance, then the employer would have to pay between two and four hours of extra wages, depending on the length of the shift.

This scheduling policy is not difficult to comply with and the premium pay is modest. Most large retailers these days use computerized scheduling algorithms to determine scheduling needs, based on a variety of historical data, statistical regression, and commercial trends. This information can predict scheduling needs months in advance, and there is nothing to suggest data compiled closer to “real time” would reveal materially different scheduling needs than the data produced two weeks before.

For example, retailers all know they will typically be busy during certain times of the day and specific times of the year — such as summer, holidays, product launches, or sales events. Minor, daily fluctuations in customer traffic should not be borne on workers’ backs so that very large retailers can maximize profitability. Either make the scheduling changes in advance, or pay the small premium.

Further, AB 357 has numerous exclusions that give retailers sufficient flexibility to respond to various scheduling needs and business demands without triggering additional pay. For example, the bill would not apply if another employee is unable to work because of illness, vacation, or time off or if an employee trades shifts with another employee or requests a change in her shift.

AB 357 is about fundamental fairness. The idea of a predictable schedule, like with our overtime laws, recognizes that working families deserve as much consideration as the profits of large businesses. The Legislature should not buy in to the Chamber’s same old arguments. The time to act is now.

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Schedule Fairness is a project dedicated to providing fair schedules to retail workers.

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