Should restaurants have to pay workers extra for schedule changes and on-call shifts?

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Kshama Sawant visited a Starbucks last year to explain her first major workers rights victory — the $15 minimum wage . (image: CHS)

One restaurant worker on Capitol Hill said fluctuating work hours each month were a “constant stress” as making rent perpetually hangs in the balance. A Hillman City fast-food manager said scheduling is an enormous task and when employees cannot pick up shifts, it is usually management that forgoes personal and family time to fill the gap.

The anecdotes, included in an extensive 119-page report on hardships faced by Seattle workers due to shifting work schedules, offers a glimpse into the contentious waters city officials are wading into as they consider a new secure scheduling ordinance.

A city-contracted researcher found that a third of workers surveyed faced serious hardships because of their work schedule, with African American and Latino workers reporting “significantly higher” than average rates of hardship. Nearly half of the workers surveyed said they would forego a 20% pay increase to secure substantive advanced notice for work.

“The data reveals that a significant number of Seattle employees’ schedules produce hardship including difficulty planning a budget, a second job, and childcare needs,” said Council member Lisa Herbold in a statement.

The report is now being used by City Hall staff to develop a predictable scheduling ordinance that is expected to come before council later this summer. New regulations could require employers to pay premiums for short notice schedule changes, “clopenings,” and on-call staffing.

Seattle restaurant and retail managers were relatively varied in how they said they would respond to such regulations. If employers were required to pay employees for keeping them on-call, 56% of respondents said they would effectively stop on-call scheduling. Only 17% said they would definitely continue to schedule on-call shifts.

Managers had a similar response to the possibility of paying a premium for “clopening” shifts, where an employee works an opening and closing shift back-to-back. 38% said they would stop scheduling such shifts altogether and 27% said they would use it as a last resort.

Nearly 44% of managers said they would not make any staffing level changes if required to pay a premium for short-notice schedule changes.

If you want to know at where all this might all be heading, look to San Francisco — the only major U.S. city that has adopted a fair scheduling ordinance. The Retail Workers Bill of Rights primarily applies to retail and restaurant chains and requires and requires on-call pay, notices for scheduling changes, and says that employers must offer part-time workers extra hours before hiring more staff when possible. Seattle researchers gave a more detailed breakdown of the most relevant pieces of the ordinal.

Estimated hours – Requires employers to give new employees a good faith estimate of the number of hours they will work per month and the days and hours of those shifts.

Two weeks’ advance notice – Requires employers to give two week’s notice of work schedules.

Predictability pay – When an employer-initiated scheduling change occurs with less than seven days’ notice but with more than 24 hours’ notice, the employer must pay one hour of additional pay, at the employee’s regular hourly rate, for each schedule change. When the scheduling change occurs with less than 24 hours’ notice, the employer owes two additional hours of pay for a shift of less than four hours, and four hours of pay for a shift longer than four hours.

On-call pay – If an employee is required to be on-call, but is not called into work with less than 24 hours’ notice, the employer must pay the employee two hours of pay at the employee’s regular hourly rate for a shift of less than four hours and four hours of regular pay for a shift longer than four hours.

Equal treatment of part-time employees – An employer must offer the same starting wages, paid time off, and promotion eligibility to part-time employees as they do to full-time employees.

Additional hours for part-time employees – Before hiring a new employee, additional hours must first be made available to part-time employees: 1) with similar job functions, and 2) if the employer deems the employee to be qualified for the position. The employer must keep record of such promotion opportunities for three years.

In what may be an encouraging finding for proponents of the law, the most common complaint from San Francisco businesses was its administrative burden — specifically, the requirement to maintain records of all schedule changes and offers to part-time employees over a three-year period.

The plan now, according to staffers in Herbold’s office, is to keep meeting with the stakeholders and use the most recent study to start drafting the actual policy.

District 3 rep Kshama Sawant previously told CHS that she wants to see a policy that affects all businesses in Seattle, not just big retail and foodservice businesses. San Francisco’s ordinance is structured to only affect big box retailers.

Not all Seattle restaurant workers are on board with such proposals. During a Tuesday City Council committee meeting on the measure, one server said she sought out a service industry career precicly because of its flexible scheduling, which allows her to make a living wage. “I do this through picking up shifts, working doubles, and clopenings,” she said. “Your ordinance has no place in the service industry.”

A respondent in the survey that works in a downtown full-service restaurant had similar thoughts: “I really don’t mind last minute schedule changes or clopens, as it often means making more money/overtime, in my situation. I would probably lose hours/money if those things were made illegal.”

Vigdor Measurement and Evaluation surveyed more than 1,000 retail and food industry employees and 500 managers for the report. In a nod that city officials are moving in the right direction by addressing housing crisis first, researchers said “actions taken to reduce the cost of living in the Seattle metropolitan area would ease many scheduling-related burdens more effectively than any direct regulation of worker scheduling.”

The highest concentration of where workers lived was around Beacon Hill/Columbia City, the Central District, and the U-District.

While researchers acknowledged the varying responses in the survey, they said there is still plenty of room for regulation: “Many have difficulty securing enough work to get by. In order to get by, they endure or volunteer for scheduling that leaves them exhausted or requires them to set other priorities aside.”

Other highlights of the report include:

  • A third of all workers surveyed were required to work “clopening” shifts.
  • 28% of workers said they initiate schedule changes because of sickness.
  • 18% said they initiated schedule changes because of a sick child
  • When employees are on call but not called in, 75% of managers said they received no compensation or other recognition.
  • 63% of all workers survey said they were satisfied with the number of hours they were working.
  • “In open-ended comments at the conclusion of the survey, many respondents cited picking up shifts via swaps with co-workers as a key benefit of scheduling policy at their current workplace.”
  • “Compared to company-owned chain stores, independently owned and operated businesses are more than twice as likely to provide under one week’s advance notice.”
  • Black and Latino workers are disproportionately likely to be placed on-call, as are male workers and workers speaking either Spanish or Chinese at home.

Scheduling Report July 15

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7 thoughts on “Should restaurants have to pay workers extra for schedule changes and on-call shifts?

  1. I think a principal part of people unpredictable schedules is when someone else who was previously scheduled ends up not working their shift and it forces someone else to have to be called in – and in any job that’s an issue. People with kids tend to be out more often because of illness (kid or themselves), child care issues, etc – and the other employees are left holding the bag. It is what it is, unfortunately.

  2. why not just make employers drop hourly wage payment and put everyone on a salary? $15/hour at 40 hours/week, for a year, would be $31.2K/year. every employee starts from there, with exact salary varying depending on skill and experience, and the assumption is that the employee would work at least 40 hours per week.

    that should remove the “constant stress” about how much an employee would get paid. they could then focus on working with their employer on what hours work best for them and their personal commitments. bonuses, tips, healthcare, etc could be layered in on top of that base salary as well.

    obviously this is a very simplistic take on a solution, and i’m probably missing some obstacles, but it seems like if we apply “white collar” pay structures to service industry jobs that’d provide some level of stability to those workers.

    • Restaurants run leaner margins than corporations do and need to be nimble to adjustments in the flow of traffic. If all restaurant employees received 15/hr and a 40 work week, prepare to pay a whole lot more for your meal, latte etc.

      There is also a huge base of employees that want the flexibility of variable shifts and work hours.

      The system works well today if employers can get their act together and ensure employees work their scheduled hours, post schedule with appropriate notice etc.

    • Salaried employees benefit the employer, not the employees (other than the predictability factor), because most salaried employees end up working more than their scheduled hours at some point. This is true in white collar jobs too, and I’m always shocked when workers want to become salaried. There is the possibility of being salaried AND non-exempt (eligible for earning overtime), and maybe that could work here – but I’m always skeptical about that set-up. Given that wage theft is already rampant in the restaurant industry, I can only imagine how many extra hours employees would be made to work if they were salaried.

      I was expecting to resist a lot of what’s being proposed, but I find it very reasonable, particularly the last 3 points.

  3. I am not in the business and have no skin in this particular game, but really, does our city need to engage in social engineering of this sort?

    There are trade-offs in any job. I read the other day that a restaurant in San Francisco lost most of their servers when they eliminated tips and raised pay. Problem was that they did not raise it to the actual 40.00 plus per hour that folks were making for their shifts. What if the quid pro quo on predictable hours for high earning servers was to lower their pay per hour?

    As to salary vs. hourly, I had the opposite issue with my business more than once – where people were say working 37 hour weeks on salary when we did a tracking experiment, rather than the expected 40 hours. At the same time claiming that they needed more staff to meet the work demands.

    I find myself thinking about weather related businesses, like ice cream shops, that have lines out the doors on sunny and warm days but would be empty on cold rainy days. How is a manager supposed to predict the weather two weeks out? I do agree that a person should be able to decline a shift and/or be paid something to be available but I would assume that a person should be able to say they are not available if not scheduled.

    Lastly, if we are going to hold businesses to account for scheduling, what of the employee who fails to show up, quits without notice and the like. This is a business reality, especially in lower pay industries. Should businesses be able to dock pay of those who put them in the position of having to call others in?

    So glad that I am not in a business where the city feels a need to engineer how I run and do wonder what limits our city has in running the lives of others?

  4. After a large increase in wages in the coming years why not ask for setting my own schedule? Business owners be damned! Sorry/not sorry, we deserve this!