All Is Not Fair in Work and Scheduling

Alex Blutman

Alex Blutman is a student at Harvard Law School and a member of the Labor and Employment Lab.

In 2014, the NY Times published a profile of Jannette Navarro, a 22-year-old Starbucks barista and single mother whose unpredictable work schedule caused her intractable chaos: inconsistent childcare, housing insecurity, a pause on her degree, and a constant struggle to live on an inadequate income. The article spotlighted the many problems that schedule unpredictability—last-minute notices, variable hours, back-to-back closing-to-opening shifts—causes for primarily low-wage retail and fast-food workers. Shortly after the article’s publication, Starbucks announced a change in scheduling policy, but governments didn’t wait for other businesses to follow suit. From 2014-2020, nine states and localities passed “fair workweek” laws, which, generally, require employers to give employees advance notice of scheduling and to pay employees extra for any variability. Now, the first major studies on the effectiveness of these laws are producing returns. Viewed next to recent labor agitations over scheduling, fair workweek laws demonstrate how one aspect of the power imbalance between employers and employees is situated over schedules and how that power may be seized.

Bad schedules are common for low-wage workers. A 2019 study determined that 75% of food and retail workers frequently experience last-minute shift changes; 66% receive less than two weeks’ advance notice of schedules, and over half often work back-to-back opening-to-closing shifts. Researchers further found that schedule unpredictably is strongly associated with material hardships, such as housing and hunger instability, that are tied to economic insecurity, as well as workers’ inability to provide sufficient care arrangements for their children. Not only do wildly fluctuating schedules make it difficult for workers to budget for necessities, but they also prevent part-time workers from getting a second job. On average, for parents who work on-call and experience last-minute schedule changes, children receive childcare from a sibling younger than 10 or no childcare at all six more days annually than children of parents without on-call or last-minute schedule changes.

Harmful schedules are linked to psychological distress, poor sleep quality, and unhappiness. In attempting to isolate the effects of scheduling on dispositions, researchers measured workers’ happiness in two scenarios, finding that workers who avoided a shift cancellation were 12 times more likely to experience happiness than workers receiving a wage increase from $7.25 to $11.25/hour. These effects are not felt evenly across race and gender. Workers of color experience more schedule instability than white workers, with greater disparity among women of color and Latinx workers who are overrepresented in retail and food service jobs. 

In response, three states and six cities have passed “fair workweek” laws, which generally include provisions for advance scheduling notice, additional compensation for schedule changes or on-call hours, mandatory rest periods between shifts, the right to accept or decline added or lengthened shifts, and the right to request scheduling accommodations. Three municipalities have implemented “right-to-request” laws that, in contrast to “fair workweek” regulations that generally apply only to retail and fast-food workers, give all or most private sector workers the right to request scheduling accommodations. Before accounting for the recently enacted Philadelphia ordinance, these new laws, in total, cover approximately 1.8 million workers.

In large part, legislators have acted in response to worker demonstration. Philadelphia approved its legislation only after workers and advocates executed a year-long campaign for predictable scheduling. Seattle’s scheduling law followed a national movement spearheaded by Starbucks baristas, in conjunction with Working Washington, featuring nationwide rallies and petitions signed by tens of thousands of workers. Starbucks employees, joined by workers from McDonald’s, Domino’s, REI, Target, and others, helped convince the Seattle City Council to enact its Secure Scheduling law, which passed in 2016 with support from local chapters of the United Food and Commercial Workers Union and the Service Employees International Union, as well as the King County Labor Council. SEIU’s lobbying also played a big part in passing New York City’s scheduling law.

Researchers recently released a comprehensive study on Seattle’s “fair workweek” law. Importantly, the frequency of unpredictable schedules decreased in Seattle while remaining constant in other control group cities. The authors found that the law decreased workers reporting on-call shifts by 7%, increased the share of workers who know their schedule at least two weeks in advance by 11%, and decreased the share of workers experiencing last-minute shift changes without pay by 13%. The study found that the increases in schedule predictability boosted workers’ happiness, improved their sleep quality, and decreased instances of material hardship, such as food or housing insecurity. Elsewhere, New York City is displaying a commitment to enforcement. The city is suing Chipotle for violations of its fair scheduling law, seeking over $150 million in relief for workers plus financial penalties. In 2020, the NYC Department of Consumer and Worker Protection delivered over $575,000 in relief to workers through settlements obtained under the law.

Data also indicates that worker-friendly scheduling policies can boost a business’s long-term financial health. At The Gap, stable worker schedules were associated with a 7% rise in profits (in an industry where 1-2% growth is considered successful), which researchers attributed to more customers spending money when entering stores and spending more money per visit—the theory being that workers on a stable schedule are more motivated and productive. This evidence undermines the primary reason employers resort to unpredictable employee schedules in the first place. With an eye to suppressing labor costs, many businesses have turned to computer scheduling software that closely tracks consumer demand to efficiently match a store’s staffing levels. The Gap study implies that whatever businesses may be saving in labor costs, they are losing out on in improved sales.

That employee schedule predictability produces increased profits would seem to support the position of opponents of fair workweek laws, who suggest that government should refrain from intervening with legislation because the market will adjust to worker needs, and businesses will self-police. Relying on voluntary uptake is optimistic, however. Even after Starbucks promised to eliminate back-to-back closing-to-opening shifts, workers continued to report receiving such schedules. Conversely, government intervention may not be the panacea either. While Seattle’s law decreased instances of unstable scheduling, it did not eliminate them completely—40% of workers covered by the ordinance still reported receiving their schedules with less than two weeks’ advance notice, suggesting shortcomings in both enforcement and the training and awareness campaign designed to educate the workforce.

Although the “fair workweek” movement kicked off with the Starbucks organizing in 2015, the issue continues to be relevant to labor fights today, as schedules remain a fundamental source of employer power over workers. Among the many topics at issue in worker activism this year, “the battle for time” has been prominent. As the labor market remains tight and workers favor less quantifiable job benefits, the opportunity to build on the momentum of “fair workweek” laws and win greater schedule predictability for workers appears ripe. While more and better fair workweek ordinances are one way to try and provide workers with more stable scheduling, it’s not clear that beefed up employment standards, in the absence of a union, will be enough. If employers are slow to fix schedules voluntarily and laws lead only to partial gains, workplace organizing may be necessary to make scheduling a key part of labor negotiations and, ultimately, workers’ terms of employment.

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