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Lousy pay ain’t the only problem

July 15th, 2014  |  Lisa Milam

By Lisa Milam-Perez, J.D.

Something about the case just miffed me. You get court decisions like that sometimes, the ones that don’t sit right with you, and you summarize them as an impartial observer as steam comes out your ears. In this instance, it wasn’t the court’s disposition, it was the facts alleged that riled me: Employees of a national retailer were seeking pay under the FLSA for (among other things) the time they spent working “on call” shifts, during which they were to remain within two hours of the store, restricting their movements, without pay for their troubles. Ultimately, the court said the retail workers had failed to allege that they were unable to spend their on-call time as they saw fit, so that time was not compensable.

But really, is on-call time your own— encumbered, as it is, by the anticipatory tyranny of the dreaded phone call? And is this the standard practice in the retail world these days? In my previous life as a retail worker, such burdens fell mainly to the (typically unionized and far better paid) public service employees and others who might need to respond in short order to emergencies far more pressing than a mad rush of shoppers at the mall.

Adding to my consternation: fresh in my mind as I wrote was a recent report on the plight of low-wage workers. The study, co-authored by Women Employed, the Center for Law and Social Policy, and the Retail Action Project, focused not on the workers’ lousy pay so much as on their “unstable and unpredictable” work schedules.

“Imagine if your work schedule changed from week to week or even from day to day, jumping from night shifts to day shifts,” the authors implore. “Imagine being scheduled to work 40 hours one week and 15 hours the next, with no expected pattern or warning of these fluctuations. Imagine paying for your children’s daycare and trekking across the city, only to have your manager send you home without pay, claiming there aren’t enough customers for you to work your shift.” Imagine nervously sweating an on-call stint at one part-time job while working a shift at the other…

“For many lower-wage workers, it doesn’t take much imagination at all to conjure up these scenarios,” the authors note. “Unpredictable and unstable work schedules leave them in a constant state of economic instability and personal turmoil. Unfortunately, for a growing number of employers, these scheduling practices are becoming business as usual.”

A corresponding fact sheet sheds further light on the plight of this growing segment of our workforce:

• Work schedules can change from week to week or even day to day (the night shift one day, the day shift the next), and employees are often given only two or three days’ notice of their work schedule. Because of their wildly fluctuating work hours, these workers can’t go back to school to improve their prospects because their schedule won’t allow regular class attendance. And they can’t get good daycare for their kids, because most daycare services won’t accept children on a sporadic basis or at night.
• Because they can’t count on a steady paycheck, these workers often need to take two or more jobs to make ends meet. But their various work schedules regularly conflict. “You sometimes have to choose which job to skip, and your employers brand you as irresponsible,” the study points out. (Of course, even landing a second gig can be tough, with employers increasingly citing “ability to work flexible hours” as a minimum job qualification.)
• Because workers can’t predict their compensation from week to week, they also can’t save for emergencies, buy a house or car (that might ease their busy work schedule), or plan for retirement.
Never mind that these workers typically don’t enjoy the benefits and sundry legal protections of full-time employment; never mind the stagnant federal minimum wage. It’s the growing prevalence of “just-in-time scheduling” that has exacerbated their plight. With this emerging practice, the authors explain, “managers are expected to carefully control the relationship between consumer demand and expenditures on wages. If customer traffic or sales seem to be lagging on a given day, the expectation is that immediate changes to workers’ hours should ensue.” Use of this tactic is increasingly the norm in the service sector, the study notes.

The report suggests two legislative fixes to ease the problem of schedule instability: guaranteed minimum-hours laws (or voluntary minimum-hours policies), which set a floor under which an employee’s weekly work hours must not fall; and “show-up” or reporting-pay laws, mandating that employees are paid for a minimum number of hours when they are sent home, “ensuring they receive the wages they depend on and can cover the costs they incurred (e.g., childcare, transportation) to enable them to show up at work.”

A minimum wage hike wouldn’t hurt either.