On Friday, March 3, 2017, EPI Research Associate Lonnie Golden testified before the New York City Council in support of five “Fair Workweek” bills being introduced by the Council.

Thank you for the opportunity to submit comments on the introduction of New York City’s proposed “Fair Workweek” legislation:

Int. 1396 – Requiring 14-day advance notice of work schedules for fast-food workers
Int. 1395 – Requiring fast-food employers to offer available hours to current employees before hiring new employees (“access to hours”)
Int. 1388 – Banning consecutive closing/opening work shifts (“clopening”) for fast-food workers
Int. 1387 – Prohibiting on-call scheduling for retail employees
Int. 1399 – Providing general right to request flexible work arrangements, with domestic violence and caregiver provisions

I am a labor economist, an associate of the Economic Policy Institute in Washington, D.C., and a senior research analyst for the Project for Middle Class Renewal at the School of Labor and Employment Relations at the University of Illinois, Urbana-Champaign (on leave from Penn State University, Abington College). I study all issues pertaining to work hours, both the causes and consequences of time at work in the labor market.

I write to support the five bills proposed today, as an academic researcher (and also as someone who has experienced at least some scheduling instability firsthand in my formative years in hourly paid jobs). I have analyzed data from two large nationally representative surveys—the U.S. Current Population Survey and the General Social Survey, plus a recent poll of the employed, nationally and within certain states, conducted by Public Policy Polling (PPP) for the Employment Instability Network at the University of Chicago. I have reviewed many studies of work hours and schedules and their various consequences, particularly for employees, but also for the labor market more generally.

The timing for the proposed Fair Workweek Legislation could not be better for New York City—or for any other city or state, for that matter. That is for four main reasons:

1. Evidence shows that irregular, variable, and/or short-notice work scheduling is pervasive in the food services and production industry (see Table 1)—affecting 21 percent of employees, higher than the national average across all industries (16 percent) and approaching the share of retail trade employees affected by irregular work schedules (29 percent).
2. Perhaps relatedly, the rate of involuntary part-time employment (“part time for economic reasons”) remains stubbornly high, particularly recently for the specific “reason” given that workers were “only able to find part-time work.” This is especially the case in two industries: retail trade (see Figure A) and leisure and hospitality (which includes eating and drinking establishments) (see Figure B). Indeed, because part-time jobs are associated with greater instability in weekly work schedules (EINet 2015), the apparent structural change, whereby employers are now relying more on part-time jobs, means that more workers will likely face greater schedule instability than if they were in the full-time jobs they prefer to be in. Workers who report their typical workweek as “hours vary” are more prevalent in the food services and production industry than in any other industry except agriculture (PPP polling, EINet 2015) (see Figure C). Together, this means that workers employed in this industry face relatively more erratic schedules generally, but particularly if they are not in the full-time jobs they prefer they prefer to be in.
3. Available evidence suggests that when workers work “irregular” or “on-call” hours (and also, to some degree, when they work “rotating” or “split” shifts), they have significantly greater difficulty balancing or integrating work with family responsibilities than those with more regular work schedules (see Table 2). In the entertainment/ recreation industry (which includes eating and drinking establishments), 29 percent of employees work irregular/on-call or rotating/split shifts, as do 27 percent of employees in retail, as compared with 17 percent of workers across industries nationally (see national poll, in EINet 2015).
4. Legislation to address these ongoing, detrimental developments for many workers have languished at the federal level, but several municipalities and a few states have moved forward (including the effort spearheaded by the attorney general of New York with seven other states following suit)on their own in addressing this with innovative policies. We are more than 7 years into an economic recovery and expansion that has seen continuous new net job creation, but the quality of at least some of these jobs is deteriorating, leaving many employees unable to share in the prosperity. Despite great progress in reducing unemployment, both nationally and in New York City, a historically high level of “underemployment” and hours mismatches persists—with too high a share of workers still wanting more income and willing to put in longer work hours but unable to.

This should and could quite easily be remedied in ways that would not unduly burden employers, harm consumers, or threaten the ongoing economic expansion, and that would, on balance, benefit tens of thousands of workers’ health, well-being, and daily functioning at their jobs and in their homes. Indeed, demonstrating that the benefits outweigh the costs of this remedy might inform other localities and nudge other industries to move in this direction, even without legislation (see Ben-Ishai 2016; Alexander and Haley 2015; Boushey and Ansel 2016; Dickson, Bruno, and Twarog 2015; Carrillo et al. 2016; Cauthen, Case, and Wilhelm 2015; City of Seattle 2016; Luce, Hammad, and Sipe 2014; King 2016; Smalley 2016).

The findings of my research in particular support a general right to request alterations in hours and schedules in cases where new or more intensive caregiving requirements have arisen for an employee. While some workers are sufficiently privileged to be granted this informally or contractually, many employees lack this right at their jobs. Indeed, this “positive” or “employee-centered” flexibility—better matching of individuals’ preferred schedules and hours—has been demonstrated to promote greater job and life satisfaction among workers, which in turn improves their job performance, and, thus, their employers’ performance. On the flip side, providing workers with very short advance notice of their schedules—particularly when the schedule changes are unwelcome (and often occurring in real time while at the workplace)—undermines workers’ well-being and, presumably, their performance. Some professional and technical jobs by their nature have an element of unpredictability and short notice, but these jobs are typically compensated for such risk or burden (otherwise many fewer would enter or stay in such jobs). Thus, it would be sensible to include an additional cost incentive in such a calculation to discourage employers from instinctively or overly relying on a strategy of such “cost-shifting” from the business to employees and their families.

The proposed legislation (Int. 1399) is considered a “soft touch” approach to improving scheduling. It simply requires employers to engage in a process of responding to “requests,” which may be limited in number for any particular employee in a given year. The requests must be considered, but can be rejected for justifiable business cause. There is widespread evidence that when their work schedules are more accommodative than fixed in stone, hourly employees gain significant benefits not just to their work–family balance, but to their work stress, fatigue, and general happiness levels—for example, having flexible start and end times and, particularly, the ability to take time off during work. Indeed, recent research suggests that such employee-centered flexibility directly counters the ill effects of irregular/on-call shift work (Golden and Kim 2017).

Given the elevated numbers of involuntary part-time workers, it is also sensible to require that, when more hours become available (because of a surge in customers, orders, or business), existing qualified (trained) employees in the workplace be offered these additional hours first—with some time window to respond—before going to an outside contractor or hiring a new employee. Indeed, many employers do this already on their own as a human resource practice. Some employers are now starting to or at least considering re-converting part-time positions back into full-time jobs, with all the status and compensation associated with a full-time job. The ordinance would not require employers to offer hours in cases where they would have to pay an overtime premium for those additional hours (imposing an undue cost burden); the requirement would apply only to straight time. Nor would the ordinance require automatic inclusion in benefit plans for any employee taking up the extra hours.

New York City has the same exact U-6 rate of “labor underutilization” as the United States as a whole does when adding in the proportion of the labor force that is “part-time for economic reasons” (BLS 2017). The involuntary part-time work rate is about 4 percent nationally. While this is still above its expected level in the current economic expansion, it grossly understates the potential benefit of instituting a process such as that proposed in Int. 1395, given that many part-time workers want more hours but do not necessarily want permanent full-time hours. Such workers are, nonetheless, underemployed (Li and McCully 2016; Zukin and Van Horn 2015).

This is widespread, but with a gradient on income—employees in lower income households are more likely to be willing to work more hours for more income (see Figure D). In 2014 and then again in 2015, the Federal Reserve Board sponsored the collection of survey data that was published in Survey of Household Economics and Decisionmaking (SHED). The survey asked respondents whether they would prefer the same, fewer, or more hours of work at their current wage rate. It found that about 33 percent of all workers—and as many as 49 percent of part-time workers—would be willing to work more hours to earn more income. (A YouGov poll, conducted in both 2014 and 2015, found, similarly, that almost half of those surveyed would be “willing to work one more day each week to receive 20 percent more income.”) This willingness was slightly higher among younger workers, Hispanics, and those with lower family incomes, but was equal across gender. As the economy improved in 2015, this level ticked downward, but not by much. The survey also found that underemployment is particularly high among college students, who often must work to help pay for school expenses—but who also can least afford to experience chronic conflict between their jobs and their class schedules. When we let these students fend for themselves, all too often the result is compromised academic performance or even the inability to stay in school.

Most pertinent to the “access to hours” bill proposed (Int. 1395), the industries and occupations associated with food service and production exhibit rates of underemployment closer to the level of all part-time workers than to the national average of about one-third of workers; more than 47 percent of the workforce in accommodation and food services want more hours of work (see Figure E). This is also true for upward of 44 percent of employees in retail trade. The SHED data also show that, by occupation, the underemployment rate for food preparation and serving jobs is over 46 percent and the rate is even a bit higher among retail sales occupations (see Figure F). By state, New York has a higher rate of underemployment, 38 percent, than the national average of 33 percent (SHED 2015).

In addition, PPP-conducted polls across various states (Golden 2016) found that in your neighboring state of Connecticut, 30 percent of workers would “prefer to work more hours for additional pay” vs. working the “same hours for the same pay.” In Connecticut, this willingness to work more hours is relatively high in the retail and wholesale industry (see Table 3). Table 4 also shows that, in Connecticut, the percentage of workers who report their typical workweek as “hours vary” is higher in food services and production than in any other industry except agriculture, and is followed closely by retail and wholesale trade. The bills regarding advance scheduling for fast-food workers (Int. 1396) and on-call scheduling for retail employees (Int. 1387) would surely help address this instability in work hours.

While the desire to work more hours is somewhat higher among early career workers and working college students seeking greater incomes (SHED 2015; Lambert, Fugiel, and Henly 2015), this desire is found to some degree across all demographic groups. This is in part a testament to the strong work ethic of Americans. Also, it reflects the evidently incomplete recovery from the Great Recession of 2007–2009 and the failure of labor market wage rates at the middle and lower ends of the spectrum to keep up with growth in labor productivity or other, non-labor sources of income or corporate profitability. It is also partly the result of the absence of labor market institutions that prevent a race to the bottom, such as on-call and short advance notice scheduling practices. Table 5 (two panels) shows that underemployment is double the overall rate if the worker “sometimes” works on-call. It also shows that underemployment is higher if workers have shorter advance notice time. Finally, Table 6 (two panels) suggests that in Connecticut, on-call or closely-spaced shifts are more frequent among those workers who have shorter advance notice of their schedules. Thus, the elevated levels of underemployment are interrelated with on-call, short advance notice and “clopening,” which public policy must address en masse. The “access to hours” provision (Int. 1395) helps address this shortfall in hours most directly; the advance scheduling and on-call scheduling bills (Int. 1395 and Int. 1387) address it indirectly. In addition, because of their interrelatedness, the on-call and advance notice provisions would work in tandem to help reduce underemployment.

Being underemployed—having fewer than desired hours—actually does not help reduce workers’ work–family conflict, despite the shorter work hours (Golden and Okulicz-Kozaryn 2015). However, those part-time workers who choose part-time status voluntarily do experience less work–family conflict. In contrast, employee-centered types of schedule flexibility have opposite associations with work–family interference (Golden and Kim 2017). Thus, the “right to request” flexible work arrangements and the “right to receive” changes to work arrangements under certain circumstances (per Int. 1399) would likely deliver significant benefits to workers with multiple roles or responsibilities—at very little cost to employers (e.g., Bird 2016).

Underemployment may be further prevented by establishing “minimum hours” requirements. Some companies voluntarily do this, recognizing its advantages; for example, Costco has a stated minimum of 24 hours per week posted at least one week in advance (Peck and Traub 2011). This is common abroad. In the UK, for example, the widespread use of “zero-hours” contracts (which promise no minimum hours of employment) fostered a move on the part of the British government (“BIS 2014-2”) in June 2014 to outright ban the use of exclusivity clauses in such contracts. The International Labor Organization (ILO), the international body that issues and monitors standards for the treatment of workers, advocates for countries to adopt minimum workweeks for part-time workers (Messenger and Wallot 2015). In some countries, a part-time employment contract must indicate a number of working hours. In Algeria, part-timers must receive not less than half of the statutory working time. In Denmark, collective agreements prescribe a minimum of 15 hours per week for part-time work. France provides a minimum target of 24 hours per week for part-time workers. ILO analysts recommends both improved treatment of part-time employees and curbing the incidence of involuntarily taken part-time jobs (Messenger and Wallot 2015); the ILO’s policy recommendations include stipulating appropriate penalties in the event of noncompliance with a country’s minimum labor standards and mitigating the vulnerability of “marginal” part-time workers, who generally work less than 15 hours a week, by including a fixed minimum compensation rate for “on-call” times not worked. In the United States, the Washington, D.C., Council recently passed the country’s first “guaranteed minimum hours” law establishing a 30-hour minimum workweek for janitors in large commercial buildings. Similar legislation has been proposed in the Jersey City, NJ, City Council for janitors, security guards, and maids, and in the State of Connecticut for its State Building maintenance workers. Finally, any “right to request” could include requesting that employers formally consider an employee’s minimum (and maximum) workweek. This would effectively eliminate “zero-hours” contracting, in practice, if that is what an employee prefers and if the employer lacks a valid business operations reason to deny. Note that this same right to request encourages a process to adjust work hours downward, not just upward. While overemployment is not as pervasive as underemployment, and while it is higher in sectors with more salaried than hourly jobs, neither is it trivial in the retail and food and accommodation industries (see Figure E). If the 2 to 3 percent of overemployed workers in those industries were able to adjust their hours downward, this could well create more available work and hours for those underemployed who seek more hours for more income.

Why does curbing underemployment matter?

• Underemployment creates daily coordination challenges when employees are forced to try to juggle two or more part-time jobs—particularly when those jobs come with either unpredictable or variable schedules, as they often do among retail workers (McCrate, Lambert, and Henly 2015). Prohibiting on-call scheduling for retail employees (Int. 1387), requiring advance scheduling for fast-food workers (Int. 1396), and placing restrictions on “clopening” (Int. 1388) would all help employees effectively execute their job duties for their employers while reducing work–life conflicts.
• Underemployment is compounded by commuting inefficiencies, the wage penalty, and benefits ineligibility faced by part-time employees when compared with their full-time counterparts (Glauber 2014; Zukin and Van Horn 2015).
• Evidence shows that involuntary part-time working and underemployment generally have adverse effects on employee health and well-being so that their level of health and well-being is more similar to that of someone who is unemployed than to that of someone who is employed at full-time hours (Golden and Okulicz-Kozaryn 2015; Bell and Blanchflower 2013; Maynard and Feldman 2011). Providing more direct access to more work hours or shifts for fast-food workers (Int. 1395) would help reduce these adverse effects among involuntary part-time workers.
• Moreover, underemployed workers do not experience any reduction in work–family conflict, despite their shorter work hours, whereas voluntary part-time workers do (Golden 2015b). Thus, greater Access to Hours would not harm work–family time conflict, while a General Right to Request with Caregiver Provisions would certainly help such efforts.
• All the adverse effects of underemployment add up to indirectly translate into lower employee job performance and retention rates (Bell and Blanchflower 2013; McKee-Ryan and Harvey 2011). Indeed, a study of a national retail clothing chain found that managers who concentrated allotted hours on their existing workforce had 19 percent lower turnover rates than managers who did not (Lambert and Henly 2012). Thus, access to more hours not only among those in the fast-food industry, but in other industries as well—perhaps pursued by employees through the more general right to request rule (Int. 1399)—would in the longer run, not harm employers’ bottom lines at all.

Finally, the focus of the on-call bill (Int. 1387) on the retail industry and on creating minimum advance notice of at least 3 days before a shift or change in schedule, are warranted. Tables 9 and 10 show that, relative to the average across industries (in the State of Connecticut), the retail and wholesale trade industry accounts for a disproportionately greater share of workers who currently receive less than 2 weeks advance notice of their schedules and whose schedules are determined entirely by their employer. Moreover, the retail and wholesale trade industry has a higher incidence of advance notice being less than 2 weeks and a greater frequency of employers changing employees’ schedules. Table 7 shows that retail and wholesale trade workers in Connecticut are less likely to “never” work on-call—although on-call work is more likely to be occasional, whereas in food services and production, this is more “regularly” the case. (These proportions for retail would surely all be more pronounced had it not been grouped for expediency with wholesale trade.) In addition, Table 8 shows that those employed in retail trade and in food services and production are less likely than the average employee to decide their own schedules and more likely to have their schedules decided by their employers with little or no input from the employee. Table 9 illustrates that the retail and wholesale trade industry has a higher incidence of short advance notice, of less than 2 weeks, and a greater frequency of employers changing employees’ schedules. Finally, Table 10 shows that Connecticut retail and wholesale trade workers are less likely to “never” work on-call shifts than workers in most other industries.

Discouraging this current cost-shifting of uncertainty to employees, via on-call or short notice scheduling, can be accomplished with enforced bans or, alternatively, with predictability pay measures (for the last-minute scheduling adjustments, early dismissal, or call-offs without pay). This would not only discourage the use of such scheduling—without a resulting in loss of business sales, production, or even jobs—but it would offer just compensation for employees for this working condition, for which the labor market is clearly not providing to most workers, and particularly not to hourly workers in retail and food services. If the costs of compliance can be limited by streamlining procedures so they are not too cumbersome (using the rapidly developing scheduling technologies in place of requiring a paper trail of written documents), and if the new minimum standards do not hinder, chill, or replace the informal arrangements already practiced by the many “high road” employers with employees in New York City, employees could benefit immediately, and employers could benefit, too, in the long run. The result would be an end to the current cost-shifting and a more equitable sharing of the rewards from improved efficiencies in the intensively competitive fast-food and retail industries.

References

Alexander, Charlotte, and Anna Haley‐Lock. 2015. “Underwork, Work‐Hour Insecurity: A New Approach to Wage and Hour Regulation.” Industrial Relations vol. 54, no. 4, 695–716.

Bell, David N.F., and David G. Blanchflower. 2013. How to Measure Underemployment. Peterson Institute for International Economics Working Paper 13.2, August.

Ben-Ishai, Liz. 2016. On the Clock in California: Volatile Schedules in California Retail Jobs. CLASP, May.

BLSinfoNY. 2016. Alternative Measures of Labor Underutilization in New York—2015 [news release 16-495-NEW]. March 9.

Boushey, Heather, and Bridget Ansel. 2016. Working by the Hour: The Economic Consequences of Unpredictable Scheduling Practices. Washington Center for Equitable Growth, September 6.

Bureau of Labor Statistics (BLS). 2017. Local Area Unemployment Statistics Alternative Measures of Labor Underutilization for States, 2016 Annual Averages. Last updated January 27.

Carrillo, Dani, et al. 2016. On-Call Job, On-Call Family: Family Support among Retail Workers with Unstable Work Schedules. Washington Center for Equitable Growth, November.

Cauthen, Nancy, Annette Case, and Sarah Wilhelm. 2015. Promoting Security in a 21st Century Labor Market: Addressing Intermittent Unemployment in Nonstandard Work. September.

Center for Law and Social Policy, Retail Action Project, and Women Employed. 2014. Tackling Unstable and Unpredictable Work Schedules.

City of Seattle. 2016. Scheduling in Seattle: Current State of Practice and Prospects for Intervention, Prepared by Vigdor Measurement & Evaluation, July 15.

Dickson, Alison, Robert Bruno, and Emily E.L.B. Twarog. 2015. Shift-Work Shuffle: Flexibility and Instability for Chicago’s Fast Food Workforce. Project for Middle Class Renewal, School of Labor and Employment Relations, University of Illinois at Urbana-Champaign, December.

Employment Instability Network (EINet). 2015. Employment Polls.

Federal Reserve Board (FRB). 2016. Report on the Economic Well-Being of U.S. Households in 2015. Washington D.C., May.

Finnigan, R., and J. Hale. 2016. Work Variability and Unionization in the Great Recession. Working paper.

Glauber, Rebecca. 2013. Wanting More but Working Less: Involuntary Part-Time Employment and Economic Vulnerability. Carsey Institute Issue Brief No. 64, Summer.

Golden, Lonnie. 2015a. “FLSA Working Hours Reform: Worker Well-Being Effects in an Economic Framework.” Industrial Relations vol. 54, no. 4 (October), 717–749, doi: 10.1111/irel.12111.

Golden, Lonnie. 2015b. Irregular Work Scheduling and Its Consequences . Economic Policy Institute, Briefing Paper #394, April 9.

Golden, Lonnie. 2016. Still Falling Short: Part Time Is Becoming the New Normal. Economic Policy Institute Report, December 5.

Golden, Lonnie, and Adam Okulicz-Kozaryn. 2015. Work Hours and Worker Happiness in the US: Weekly Hours, Hours Preferences and Schedule Flexibility. Working paper.

Golden, Lonnie, and Jaeseung Kim. 2017. “Irregular Work Scheduling and Its Consequences.” In, Bulletin of Comparative Labour Relations: Work–Life Balance in the Modern Workplace—Interdisciplinary Perspectives from Work–Family Research, Law and Policy on the Blurring of Boundaries between Work and Private Life, Sarah deGroof, ed. Kluwer Law (forthcoming).

Henly, Julia R., and Susan J. Lambert. 2014. “Unpredictable Work Timing in Retail Jobs Implications for Employee Work–Life Conflict.” Industrial & Labor Relations Review vol. 67, no. 3, 986–1016.

Jobs With Justice. 2015. Unpredictable, Unsustainable: The Impact of Employers’ Scheduling Practices in D.C. Washington, D.C.

Lambert, Susan J., and Julia R. Henly. 2012. “Frontline Managers Matter: Labour Flexibility Practices and Sustained Employment in US Retail Jobs.” In Are Bad Jobs Inevitable? Chris Warhurst et al., eds., 143–159. New York: Palgrave MacMillan.

Lambert, Susan J., Peter J. Fugiel, and Julia R. Henly. 2015. Schedule Unpredictability among Early Career Workers in the US Labor Market: A National Snapshot. EINet (Employment Instability, Family Well-being, and Social Policy Network) at the University of Chicago.

Li, Geng, and Brett McCully. 2016. “Is Underemployment Underestimated? Evidence from Panel Data.” FEDS Notes, Board of Governors of the Federal Reserve System, May 16.

Luce, Stephanie, Sasha Hammad, and Darrah Sipe. 2014. Short-Shifted. New York, NY: Retail Action Project.

McKee-Ryan, Frances M., and Jaron Harvey. 2011. “‘I Have a Job, but…’: A Review of Underemployment.” Journal of Management vol. 37, no. 4, 962–996.

King, Mary C. 2016. The Impact on Oregonians of the Rise of Unpredictable Scheduling Report to the Portland City Council, October 12.

McCrate, Elaine, Susan J. Lambert, and Julia R. Henly. 2015. Schedule Instability, Hours of Work, and Underemployment Among Hourly Workers in Canada. Working paper. Burlington, VT: University of Vermont.

Messenger, Jon C., and Paul Wallot. 2015. The Diversity of “Marginal” Part-Time Employment. Inwork

Policy Brief No. 7, International Labour Organization, Geneva, Switzerland, May.

Peck, Ben, and Amy Traub. 2011. Worth Working For: Strategies for Turning Bad Jobs into Quality Employment. Demos, October.

Ruan, N., and N. Reichman. 2014. “Scheduling Shortfalls: Hours Parity as the New Pay Equity.” Villanova Law Review vol. 59, no. 1 (October 7), 14-02.

Smalley, Chadrick. 2016. Analysis: Emeryville Retail and Food Service Employee Scheduling. Prepared for the City of Emeryville, California, August 17.

Zukin, Cliff, and Carl Van Horn. 2015. A Tale of Two Workforces: The Benefits and Burdens of Working Part Time. John J. Heldrich Center for Workforce Development, Bloustein School of Public Policy, Rutgers University, June.