Friday, August 8, 2014
In the recent debate over raising the minimum wage, an issue that’s often left out of the conversation is that of work hour insecurity. An hourly worker’s take-home pay is determined by two variables: her hourly wage and the number of hours she works. The effect of increasing the hourly wage will be blunted if the worker struggles to find sufficient hours of work. And more and more workers are struggling, particularly in service-sector jobs. Service employers like hotels, restaurants, and retail stores are increasingly adopting “just-in-time” scheduling, using sophisticated software to track customer demand and then adjusting workers’ schedules at the last minute in order to meet a pre-set ratio of labor hours to customer demand.
A recent New York Times article describes the effects of just-in-time scheduling:
- "A worker at an apparel store at Woodbury Common, an outlet mall north of New York City, said that even though some part-time employees clamored for more hours, the store had hired more part-timers and cut many workers’ hours to 10 a week from 20.
- As soon as a nurse in Illinois arrived for her scheduled 3-to-11 p.m. shift one Christmas Day, hospital officials told her to go home because the patient “census” was low. They also ordered her to remain on call for the next four hours — all unpaid.
- An employee at a specialty store in California said his 25-hour-a-week job with wildly fluctuating hours wasn’t enough to live on. But when he asked the store to schedule him between 9 a.m. and 2 p.m. so he could find a second job, the store cut him to 12 hours a week."
The Fair Labor Standards Act doesn’t regulate employers’ scheduling and staffing decisions (except in some narrow circumstances where the statute has been interpreted to require payment of wages to “on call” workers who are “engaged to wait” for work assignments), but some state laws and unions’ collective bargaining agreements do contain guaranteed pay provisions. These require employers to pay “call-in” and “send-home” pay, or a minimum number of guaranteed hours of pay when a worker is called in to work unexpectedly or sent home early. These requirements are supposed to disincentivize just-in-time scheduling. However, as I explore in a forthcoming Harvard Civil Rights-Civil Liberties Law Review article with co-authors Anna Haley-Lock and Nantiya Ruan, the laws are woefully underutilized by workers and relatively easy to work around for savvy employers.
Given the recent public interest in and support for raising the minimum wage, now is an excellent time for additional attention to the problem of work hour insecurity. In trying to end working poverty, we should be focusing on both wages and hours, and exploring possible solutions (including perhaps expanded guaranteed pay laws) to the problem of work hour insecurity.
-- Charlotte Alexander