By Don McIntosh
It was the first in the nation: A statewide law to halt a growing trend of abusive scheduling practices by large retail, food service and hotel employers. But two years in, Oregon employers have found ways to dodge the law’s intent, according to a study published in July by researchers at the University of Oregon.
Passed in 2017, Oregon’s Senate Bill 828 applies to retail, food service, and hospitality establishments that employ more than 500 workers worldwide. That amounts to roughly 100 employers in Oregon, including companies like Home Depot, Fred Meyer, Starbucks, and Hilton Hotels. Under the law, those employers are required to give employees two weeks’ written notice of their work schedules, separate shifts by at least 10 hours, and pay extra “predictability pay” for last-minute employer-requested schedule changes.
The law is a response to a real and growing problem: Many big employers have been moving to a “just-in-time” scheduling model that uses sophisticated software to predict customer volume and then make adjustments to employee schedules, canceling or adding shifts or sending workers home early or late. It’s a way to shift the burden of day-to-day business fluctuations onto workers, and it’s creating chaos for workers’ lives. Paychecks become volatile. It becomes harder to juggle two jobs. And parents of young children struggle to arrange and rearrange childcare.
SB 828 was meant to make workers’ schedules more predictable and stable, by making those large retail, hospitality, and food service employers pay an hour’s wage each time they change a worker’s posted schedule, and half-time pay for unworked hours when workers scheduled shifts are cancelled or ended early. It remains the only statewide law of its kind.
But the UO study shows the law has fallen short of its promise. Researchers with the University of Oregon Labor Education and Research Center (LERC) and the UO Sociology Department conducted in-depth interviews with 75 workers and 23 managers in businesses affected by the law, and discovered that employers are continuing to change schedules at the last minute without paying for it.
Workers they interviewed reported that their schedules were changed after they were posted—once or twice a month, or even as often as daily. The requirement to pay “predictability pay” for schedule changes was supposed to have discouraged those last minute changes, or else compensated workers for the inconvenience. But employers were avoiding that requirement by using standby lists and waivers.
The “voluntary standby list” provision of the law was added as an amendment late in the 2017 legislative session, when it wasn’t clear SB 828 would pass otherwise. It allows employers to maintain a list of workers who declare they’re willing to work additional hours when unforeseeable circumstances occur. Workers on the list agree to work those extra hours without compensation for the schedule changes.
One-off waivers are the other mechanism employers are using to get around the intent of the law. Managers interviewed by the researchers reported that they were coached to make schedule changes seem like they were being made at employees’ request. Under the law, no predictability pay is owed when it’s the employee who requests the last-minute schedule change. So managers are framing changes as the employee’s choice, asking workers to “volunteer” to stay late or leave early to meet business needs. Workers are asked to sign a waiver in each case, stating that the change was voluntary.
“Workers have by and large not been getting predictability pay,” concluded Lina Stepick, one of the study’s authors.
“They’re wholesale having everybody signing these standby lists,” says UFCW Local 555 secretary-treasurer Jeff Anderson, one of the law’s chief proponents. “We do not believe that’s following the intent of the law.”
To be clear, researchers did find that the law has had beneficial effects for workers. “Clopening,” the practice of a worker closing up a shop only to reopen it hours later, has largely disappeared because of the requirement that there be at least 10 hours between shifts. And workers are getting schedules sooner, making it easier to plan their lives. In the grocery industry, workers used to commonly get schedules on a Thursday for the week that started the following Monday; now they’re getting schedules a full two weeks ahead of time.
The Oregon Legislature gave Oregon’s Bureau of Labor and Industries (BOLI) responsibility for enforcing SB 828, but didn’t give BOLI any additional resources for that purpose. Sonia Ramirez, head of BOLI’s Wage and Hour Division, said agents with BOLI’s Proactive Investigation Unit were beginning to do unannounced site visits to make sure the fair scheduling law was being followed, but those visits stopped when the COVID pandemic hit. BOLI has conducted 136 investigations that identified predictive scheduling as an issue since the law took effect. The vast majority were closed with a warning letter sent to the employer, but some led to compliance agreements that resulted in employers paying additional compensation and revising policies on how to request employees work additional hours.
“Based on what we’re hearing in the report, the standby list provision is being abused,” said State Senator Michael Dembrow, SB 828’s lead sponsor. “I think that has to be fixed somehow, either through the agency or through statutory fix.”
Read the study
University of Oregon researchers Ellen Scott, Lina Stepick, Lola Loustaunau and Larissa Petrucci spent over a year locating and interviewing nearly 100 retail, restaurant and hotel workers and managers about a landmark law that’s supposed to stop last-minute schedule changes. They published their conclusions in a report entitled Persistent Unpredictability.
A solution in Congress?
A bill called the Schedules That Work Act has been introduced every two years in Congress since 2014. It would require employers to provide schedules two weeks in advance, and to pay extra when their schedules are changed abruptly. But it’s never gotten a hearing.
Know your rights
Oregon’s Bureau of Labor and Industries has put together a one-page poster explaining workers rights under the fair scheduling law.
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Healthcare/caregiver workers bear the brunt of canceled hours and shifts. I’ve had cancellations with less than 24 hours notice, sometimes within hours before my shift–and although the family paid the company for the shift time, we workers don’t get compensated for the loss of hours. I was even denied my PTO because the company claimed I wasn’t working that week (when I was).