Labor Scheduling Is About to Get Dicey

Over the years, I have used this space to talk directly to convenience store operators and other industry players about emerging issues and their potential impact both operationally and reputationaly. It’s time to put a new issue on the agenda; one that’s been percolating for some time but will soon be on our doorstep.

In 2012, a union-backed New York City worker center known as the Retail Action Project (RAP) launched the “Sustainable Scheduling Campaign” with backing from the United Food and Commercial Workers (UFCW) to address “on-call” or “just-in-time” scheduling practices. The groups claimed these types of scheduling programs and practices tied workers’ hours to customer flow and as a result, day to day and even hour to hour, workers were left in the precarious position of not knowing if or when they would be required to work.

Because the campaign name itself was clunky, RAP rebranded its effort to the “Just Hours” campaign. As the effort gained momentum, it was relaunched nationally as the “Fair Workweek” or “Workers Bill of Rights” initiative.

In the last three years, legislation has been popping up in markets across the country. The bills run the gamut from mandating the number of days or weeks in advance that schedules must be posted, to the number of hours off between shifts, to punitive time-and-a-half mandates for transgressions.

The efforts are advancing through the actions of retail-focused unions and their worker center partners. Today, up to 10 states have introduced bills surrounding the scheduling of employees, including California, Connecticut, Illinois, Indiana, Maryland, Massachusetts, Minnesota, Minnesota, New York and Oregon.

The California bill, in particular, applies to food and retail employers with 500 or more employees and is designed to target the growing number of companies using “just-in-time” and “on-call” scheduling practices to minimize labor costs. It mirrors the fair scheduling bill that passed in San Francisco last year, which will take effect in July.

In addition, proponents of these bills have leveraged their connections within the attorney general community to engage and enforce “reporting-time pay” laws where they are on the books, which includes eight states and the District of Columbia. While these rules are all somewhat different, they basically require non-exempt employees to be paid a minimum amount whenever they report to work as required or requested by the employer — even if no work is performed.

In April, New York Attorney General Eric Schneiderman informed 13 major retailers that they are being investigated for “questionable scheduling practices.” You can be certain that other attorneys general will follow suit. Like the legislative efforts, if anyone thinks these types of investigations will stay limited to the retail sector, then they have not been paying attention.

The “Fair Workweek” provisions are a particularly tough issue for the retail community. For one thing, there are business owners who have some questionable business practices.

“On-call” scheduling — the practice of having employees call in prior to a shift to see if they are needed — basically freezes that employee from scheduling social or family-related activities, or even other employment opportunities. Moreover, if they are not needed, they are not paid. While rampant in the department store world, we have seen it used in the restaurant industry as well. Realistically, the practice is a tough one to defend publicly.

Other instances have surfaced where owners have intentionally overscheduled staff in anticipation of no-shows. If everyone happens to show up for their shift, some employees are sent home without pay. Again, this is nearly impossible to defend in the public domain.

The proponents of legislation to enforce new rules can easily identify and publicly highlight workers who have experienced overscheduling or on-call practices. And, of course, the media predictably eats it up.

Perhaps the biggest challenge we face is the fact that this issue polls better for the unions than almost all the other issues around wages and benefits.

The reality is that the vast majority of managers and employees have a system that works, and workers choose job opportunities oftentimes based on scheduling considerations. Unfortunately, a few bad actors can create an environment where the heavy axe of regulation is dropped on all employers.

I think we need to acknowledge that for a lot of companies, this is an unnecessary mandate. Probably an overwhelming majority already exceed the standards — save last-minute shift swaps — but a few are exploiting workers and creating an environment ripe for aggressive overregulation. 

The bottom line is we need to be better at publicly highlighting the reasons why job flexibility is a major component of what makes our jobs attractive for millions of workers. We need to do an even better job internally to make sure we are not using practices in our workplaces that make us easy targets for attack. The business community is doing a good job quickly coordinating a defense against these workweek proposals, but it is a huge mountain to climb.

Candidly, we knew this was coming for a long time. Despite overwhelming evidence to the contrary, the traditional retail community spent far too many years in denial that this issue was emerging and now finds itself in a deep hole. The restaurant industry wasn’t paying attention and it now finds itself the poster child for the issue, particularly the quick-service restaurant (QSR) segment.

Because we share similar business models, similar reputational challenges and increasingly actual floor space with restaurant brands, the convenience store industry WILL become mired in this issue very soon. Not may, will.

Let’s not replicate the mistakes of the retail and restaurant community on this issue. Let’s make sure the brushfire doesn’t come right to our doorstep before we start rummaging around the shed looking for the hose.

Editor's note: The opinions expressed in this column are the author's and do not necessarily reflect the views of Convenience Store News.