Testimony of the National Women’s Law Center

In Support of H. 3809—An Act Relative to the Scheduling of Employees

Submitted to the Joint Committee on Labor and Workforce Development,

General Court of the Commonwealth of Massachusetts

July 9, 2019

Dear Senator Jehlen, Senator Lewis, Representative Brodeur, Representative Hay, and Members of the Joint Committee on Labor & Workforce Development of the Massachusetts General Court:

Thank you for the opportunity to submit this testimony on behalf of the National Women’s Law Center (NWLC), a non-profit organization that has been working since 1972 to secure and defend women’s legal rights, and to help women and their families achieve economic security. NWLC is part of a national policy group helping to lead the movement to secure fair scheduling practices for working people, because unstable and unpredictable work schedules disproportionately impact women, especially women of color, and are particularly detrimental to women with caregiving responsibilities. We strongly support S. 3809, “An Act Relative to the Scheduling of Employees,” as an important measure to combat unfair scheduling practices that are detrimental to working people, families, and communities.

Women often bear the brunt of just-in-time scheduling practices that undermine their best efforts to support and care for themselves and their families.

Recent years have seen a rise in the use of “just-in-time” scheduling practices, enabled by modern workforce management systems, that use algorithms to base workers’ schedules on perceived consumer demand and maximize flexibility for the employer at the expense of the employee. These practices rarely take employee needs or preferences into account and typically produce very little advance notice of work schedules, with frequent last-minute changes and work hours—and thus incomes—that fluctuate unpredictably from week to week. An employee scheduled for an “on-call” shift must make arrangements to ensure that she is available to work at the appointed time, while her employer waits until the last minute to notify her that she needs to—or, more likely, does not need to—report to work. And many employers also spread hours among scores of part-time staff rather than offering stable full-time positions with benefits and opportunities for advancement; some require employees to have completely open availability even to qualify for full-time hours.

All of these practices make it extremely challenging for working people to meet their responsibilities outside of their jobs, including caregiving, pursuing education and workforce training, or holding down a second job—and all of these practices are commonplace in many service sector jobs today. For example, new research from the Shift Project, led by Daniel Schneider of UC Berkeley and Kristen Harknett of UC San Francisco, finds that nationwide, about two-thirds of hourly workers in the service sector receive their work schedule with less than two weeks’ advance notice, and about one-third receive their schedule with less than one week’s notice; just over one-quarter experience on-call shifts, and half have been required to work the closing shift one night and the opening shift the next morning (a “clopening” shift); and only one in five works a regular daytime schedule. These trends are remarkably consistent in reports from service sector workers across the country—from Washington state to Philadelphia to Boston —and workers in each of these jurisdictions overwhelmingly share a desire for more adequate hours and more stability and predictability in their work schedules.

The low-wage, hourly jobs in the retail, food service, and hospitality industries in which just-in-time scheduling practices are most concentrated are jobs that women, disproportionately women of color, are especially likely to hold. In Massachusetts, women make up nearly two-thirds of the workforce in jobs that typically pay the minimum wage or close to it. Women also still shoulder the majority of caregiving responsibilities in families, making difficult scheduling practices hit women especially hard. The Shift Project documents that in Boston, for example, nearly 70 percent of service sector workers find that their work schedules make it hard for them to meet their caregiving responsibilities. And for the single mothers who head nearly one-quarter of families in Massachusetts, work scheduling challenges can be particularly acute, since there is often no one else with whom to share caregiving duties.

Volatile work schedules, and the volatile incomes that result, undercut workers’ efforts to budget for expenses and maintain family routines. Research increasingly shows that income volatility is as significant a source of poverty as low wages. Families with volatile incomes are far more likely to rely on payday loans, defer medical care, miss a housing payment, and experience food insecurity than families with equal but more stable income. And while public programs like child care subsidies, TANF, SNAP, and unemployment insurance are especially important to enable working people who are paid low wages and offered too few hours to make ends meet, volatile schedules and incomes can also make it difficult to maintain eligibility for these critical supports.

The Shift Project’s research affirms that unstable and unpredictable work schedules also have significant detrimental impacts on sleep quality, mental health, and happiness. At the same time, such schedules make it more difficult for working people to get the health care they need for themselves and their families by preventing them from being able to make necessary appointments or forcing them to cancel—which can have dire consequences when a serious condition goes undetected or untreated. And without input into their work schedules, survivors of domestic violence and sexual assault lack the flexibility and predictability they need to help escape and recover from abuse.

Unstable and unpredictable work schedules cause instability for children and child care providers, too.

Just-in-time scheduling practices not only harm the working people who experience them, but also can undermine their children’s well-being. The features of low-wage work that often interfere with caregiving—including inadequate income and constantly fluctuating work hours—produce stress for parents and children alike, and can adversely affect children’s development. And these same conditions can make maintaining stable, high-quality child care nearly impossible. Because many centers require caregivers to pay a weekly or monthly fee, regardless of how often the child attends, holding a spot in a child care center is rarely feasible for people who do not know when, or even if, they will work that week. Parents in low-wage jobs frequently must rely on family, friends, and neighbors or seek out lower-cost—and often lower-quality—care for their young children. While some families may have a reliable relative, neighbor, or friend available who can provide nurturing care for their children, other families may be forced to settle for options that do not offer the early learning experiences they want for their children because they have no other choice. Volatile work schedules take a toll, too, on care providers—who are also mostly women, disproportionately women of color and immigrant women, and who often must scramble to be available for families with little notice and may also be balancing unpredictable part-time work schedules at their own jobs with providing child care.

H. 3809 would grant working people more stable, predictable, and adequate hours and a voice in their work schedules.

When women’s jobs pay low wages and don’t allow them to balance their responsibilities at work with their caregiving obligations; when they can’t secure reliable child care that allows them to work knowing their children are getting the care they need to thrive; when they can’t get the rest or the medical treatment they need to keep themselves and their families healthy and productive; when they can’t commit to a higher education program to advance in their careers or even a second job that can help them make ends meet—it is hard, and sometimes impossible, for women to get and keep good jobs and advance in the workplace. These barriers are among the factors reflected in the persistent gender wage gaps that we see across the country and in Massachusetts, which are especially significant for women of color and women who are mothers—and for mothers who are women of color most of all. For example, while women of all races working full time in Massachusetts typically make 83 cents for every dollar paid to a man, mothers overall in Massachusetts make just 71 cents compared to fathers. Asian American and Pacific Islander moms in Massachusetts make 82 cents, white moms make 72 cents, Black moms make 47 cents, and Latina moms make just 40 cents compared to white, non-Hispanic fathers. And all of these gaps grow even wider if women’s earnings are compared to men’s without restriction to full-time wage earners, since women are far more likely than men to work in part-time jobs that, relative to full-time jobs, typically pay less per hour, lack benefits, and are more likely to feature just-in-time scheduling practices.

Massachusetts has made important strides in recent years to close these gaps, including the passage of historic pay equity legislation in 2016 and paid family and medical leave and a $15 minimum wage in 2018. Ensuring that women working in retail, food service, and hospitality jobs have access to a fair workweek is an essential next step—and that is what H. 3809 would do.

  • H. 3809 provides working people with a voice in their work schedules. Research from the Shift Project shows that people working in service sector jobs frequently lack control over their work schedules and are expected to be available to their employers 24/7; for example, in Boston, close to half of service sector workers have no input into their work schedules and 64 percent report that they have to keep their time open and available for work. Women may face particularly significant pressures: in a recent national survey of frontline retail workers, 60 percent of women identified open availability as a key criterion for advancement in their jobs, compared to 40 percent of men.H. 3809 promotes employee input into work schedules by providing covered employees with the right to identify and request, without fear of retaliation, limitations or changes in their availability and preferences for certain work schedules or arrangements. This protection is vital to combat the retaliation, in the form of reduced work hours or even termination, that employees who place some limits on their availability or request particular schedule modifications too often experience. An employee who asks her employer if she can have Tuesday nights off to attend classes, or a schedule that allows her to see her children in the evenings, should not risk punishment just for making the request. Similar protections have recently been enacted in Vermont, New Hampshire, Oregon, Seattle, San Francisco, New York City, Philadelphia, and Emeryville, California.
  • H. 3809 recognizes the burdens that working people and their families bear when they face reduced hours with little notice, and compensates them for the costs of those schedule changes. Massachusetts has already taken steps to recognize that employees should be compensated when they reserve their time for their employers through its reporting pay policy, which requires employers to pay an employee for at least three hours at minimum wage if the employee is scheduled to work three or more hours and is not given those scheduled hours when she reports to work. H. 3809 builds on this policy by requiring at least 14 days’ notice of shifts, and guaranteeing half time pay for any unworked hours when shifts are canceled or reduced with less than the required notice. (For schedule changes that do not involve a loss of hours, employees are entitled to one hour of additional pay.)This policy helps to immediately compensate employees for the costs associated with changed shifts, like the cost of rearranging child care or not being able to pay a bill as expected—costs that so many working people are not in a position to absorb. It also incentivizes employers to plan ahead and discourages unnecessary last-minute changes—while allowing employers to make such changes when they are in fact necessary, so long as they provide the requisite compensation to affected employees. (Such extra pay is not required when, for example, the schedule change was made at the employee’s request, as the result of a mutually agreed upon shift trade among employees, or when the employee volunteers to work additional hours.) These “predictability pay” provisions are in line with those enacted in Oregon, Seattle, New York City, and Philadelphia as well as in San Francisco and Emeryville, California.

    H. 3809 recognizes, too, that persistent abusive scheduling practices can force a worker to leave her job, and provides that anyone who terminates employment due to the employer’s violations of the Fair Workweek requirements, or due to a significant change to the employee’s work schedule that results from changes in the employer’s business needs, will not be disqualified from unemployment insurance benefits.

  • H. 3809 discourages the unhealthy and unnecessary practice of “clopening.” Like last-minute schedule changes, the practice of “clopening”—i.e., requiring an employee to work the closing shift one night and the opening shift the next morning—is particularly disruptive to family routines. Clopening leaves workers without enough time to travel home and get sufficient rest before returning to work, which in turn can harm both their health and their productivity on the job. H. 3809 will help ensure that workers in retail, food service, and hospitality establishments have adequate time to travel and rest between shifts by prohibiting employers from requiring employees to work with less than 11 hours between shifts; if an employee consents to work such shifts, the bill requires the employer to pay the employee at 1.5 times her rate of pay for the hours she works in a shift that begins less than 11 hours after her previous shift ended. Laws enacted in Oregon, Seattle, New York City, Philadelphia, and Emeryville, California similarly restrict clopening shifts, recognizing that such shifts should be rare, voluntary, and compensated just as overtime—another protection from unhealthy overwork—already is.
  • H. 3809 promotes opportunities for full-time work. The bill requires covered employers to offer available hours to current, qualified part-time employees before hiring new employees or subcontractors. Seattle, Philadelphia, and San Francisco, San Jose, and Emeryville, California have all enacted similar requirements to help workers gain the hours and income they need to provide for themselves and their families. In San Jose, where such a requirement was put to the voters as a 2016 ballot initiative, a resounding 64 percent of voters supported it.

Compliance with these policies is supported by the same workforce management (WFM) systems that most employers use to generate schedules. These systems, which helped to drive work-hours volatility in the first place, can ameliorate it by automating compliance with fair workweek policies. These systems automatically generate schedules according to algorithms set by the company. An employer can program virtually any rule into their WFM system, which can also track schedule changes and communicate with payroll systems to automate additional wage payments, just as overtime is paid without manual calculations. Every WFM vendor also provides mobile access, making it even easier for employees to access their schedules remotely, request shift swaps and respond to offers of extra hours.

H. 3809 would benefit employees and employers alike—because good scheduling practices are good for business.

By treating employees as an asset that can boost a company’s profitability—and as people, rather than as a cost to be contained—businesses can increase productivity and sales, and actually reduce long-term labor costs. Employers that offer their employees stable and predictable schedules often report reduced turnover and improved employee loyalty. More consistent hours and advance notice of schedules also make it easier for employees to secure stable child care and arrange transportation so that they can consistently be and stay at work—in turn creating stability, predictability, and cost savings for businesses. Recently, Gap Inc. worked with managers to pilot strategies to improve consistency in shift scheduling, make it easier for workers to swap shifts using a mobile app, and offering a core group of associates a soft guarantee of 20+ hours a week. Employees reported enthusiasm for these changes and the stores that implemented them saw higher productivity as well as a 7 percent increase in sales—notably higher than the standard goal of 1 to 2 percent sales increases commonly sought in the retail industry.

* * *

Experts convened by the Aspen Institute determined that erratic work hours driven by just-in-time scheduling practices are the leading cause of income volatility and agreed that fair workweek policies are “the most promising of all possible government interventions” to address this volatility. And in the first study of the impact of a fair scheduling ordinance, Duke University researchers who monitored working parents in Emeryville, California found that those covered by the local Fair Workweek policy reported a 35 percent decline in schedule instability after the policy took effect, and last-minute schedule changes fell by nearly half; overall, working parents covered by the Fair Workweek policy reported significant improvements in family well-being after the ordinance was adopted. Nearly 2 million working people across the country already enjoy fair workweek protections; working families in Massachusetts should not have to wait any longer to join their ranks.
NWLC appreciates the efforts of the bill sponsors and this Committee to address the negative impact of just-in-time scheduling on the lives of women and families in Massachusetts, and this legislature’s longstanding commitment to advancing equal pay. We thank you for your consideration and respectfully request a vote in favor of H. 3809.


Julie Vogtman
Director of Job Quality & Senior Counsel