Low wages & unpredictable schedules: A toxic combination for part time employees

Low wages & unpredictable schedules: A toxic combination for part time employees

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By Charlotte Fishman

In a society that blurs the lines between corporations and people, perhaps it was inevitable that some employers would blur the lines between people and inanimate objects.  Even so, it is shocking to learn that in a growing number of low wage industries, employers  treat part time employees as fungible, disposable assets, instead of human beings worthy of  respect.

Part time workers who toil in retail, food service, and janitorial jobs often find that their time is treated like just another production cost to be sacrificed on the altar of “maximizing profitability.”  They may be kept “on-call” with no compensation, assigned shifts with short notice, or burdened with unpredictable, fluctuating hours.  Even if scheduled to work, they may be told “we don’t need you today,” and sent home empty-handed.

When the labor needs of a business increase, a part time employee’s request for increased hours or  full time work is often denied.  Why? It is more “cost effective” to hire an additional part time worker than to pay a current employee the statutorily mandated benefits that come with increased hours.  Job security is illusory.  Nothing stops an employer from firing a part time employee who refuses to come in on short notice, even if the cause is a sick child or inability to rearrange an established childcare schedule at the last moment.

In addition to being inhumane, these insecurity-inducing employment practices take a huge toll on the  nation’s economic and social health. Without a predictable schedule, how can a low skilled worker improve his or her employability through education? How can a working mother arrange for stable childcare? How can a low wage worker take on additional part time employment to raise the family income above poverty level?

Scheduling abuse of low wage part time workers is a serious social issue that is finally getting the attention it deserves.   On July 22, California Representative George Miller and Connecticut Representative Rosa DeLauro introduced  H.S. 5159, “The Schedules that Work Act” in the House of Representatives.   A companion bill sponsored by Senators Elizabeth Warren and Tom Harkin will be taken up by the Senate.

“The Schedules that Work Act” is characterized by its proponents as a conversation starter about the devastating effect of unreasonable scheduling demands – a practice that has become commonplace in industries as diverse as Big Box stores, fast food chains and multi-national banks.  If enacted, it would prevent retaliation against employees who ask for schedule adjustments;  create an interactive process for employees to obtain accommodation for caregiving responsibilities, classes, second jobs, and other needs;  require employers to provide at least two weeks advance notice of work schedules; and provide at least some compensation for last minute schedule changes, split shifts and early dismissals.

Unfortunately, the bill’s provisions, modest as they are, may be too controversial to pass the gridlock in Congress.  While employer-side representatives loudly proclaim the benefit of flexible part time schedules for both employers and employees, the Bureau of Labor Statistics reports  that roughly 7.5 million employees are working part time only because their hours were cut or they were unable to find full time work.

This is not to say that flexible part time scheduling can never be beneficial for employees.  A predictable flexible schedule — one that enables part time employees to take a second job, to enroll in a training course or to provide care for family members – would be highly desirable to many.

There are hopeful signs of change to come at the local level.  In San Francisco,  Supervisor Eric Mar is poised to introduce the aptly named “Retail Workers Bill of Rights” to the Board of Supervisors at its July 29 meeting.   The proposed ordinance targets “formula retail” businesses,  a designation that includes chain stores, fast food restaurants, and multi-national banks.   Among the rights granted to employees are the right to  four hours pay for “on call” time or shift cancellation on short notice and the right to be offered additional hours before  any new part time workers are hired. The bill is supported by Jobs with Justice, a broad coalition of labor, community and small business groups.

The families of part time low wage workers need and deserve help creating a path out of their current predicament.  The toxic combination of low wage employment and unpredictable schedules is a form of involuntary servitude that should have no place in 21st century America.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Abercrombie & Fitch doesn’t get it when it comes to diversity

In 2010, Abercrombie & Fitch fired a 19-year old Muslim stock clerk who wore a hijab to work with the permission of her local manager.  In answer to her EEOC charge of religious discrimination, the company argued  that any deviation from its “Look Policy” would place an “undue hardship” on its California beach inspired Hollister brand.  Federal District Judge Yvonne Gonzalez Rogers didn’t buy it.

In her recent op ed in the Sacramento Bee, CELA VOICE contributor Charlotte Fishman explains how its adherence to a rigid appearance code ran afoul of federal and state law mandating religious accommodation in the workplace.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

By Charlotte Fishman

Over one million people attended the San Francisco Pride Parade last Sunday, and I was one of them.  Having just returned from attending the National Employment Lawyers Association Summit for Worker’s Rights in Denver, I got caught up in the excitement of my daughter and her high school friends as they prepared to leave for their trip to the City.

Four days earlier, the United States Supreme Court had announced two long-awaited decisions affecting same sex marriage – Hollingsworth v. Perry leaving intact the California Supreme Court’s decision to strike down Proposition 8, and United States v. Windsor,  declaring Section 3 of the Orwellian-titled Defense of Marriage Act [“DOMA”]  an unconstitutional denial of equal protection of more than one thousand federal laws affecting marital or spousal status.  Justice Kennedy’s majority opinion in Windsor did not mince words:  “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

After waving goodbye to the kids, we parents rapidly made a decision:  a beautiful day, a historic occasion—how could we miss it?!  As soon as we reached the BART platform, we were surrounded by riders in rainbow-hued tights, tutus, face paint, headgear, and jewelry.  As we rode from station to station, the train filled to bursting with riders of every age, race, and family circumstance – gaggles of glittery teenage girls, two-mom families with preschoolers, heterosexual couples with costumed babies, pierced bike riders, and elderly same-sex couples sporting rainbow beads. It felt like half the population of the East Bay was traveling to the Pride celebration.

Despite my understanding the legal and historical importance of the Windsor decision, I was still unprepared for its emotional impact on the crowd.  Parade participants weren’t just celebrating California’s legal right to marry – they were bearing witness to society’s validation of individual choices and family ties.  Float after float, sponsored by Google, Kaiser and other large mainstream institutions, rode down Market Street accompanied by waving employees who were embraced by the cheering crowd. “All love is equal!” chanted marchers bearing equality signs in all the colors of the rainbow.  Market Street was vibrating with a palpable sense of pride, joy, gratitude – and relief.

The founders of this country wisely named “the pursuit of happiness” as one of the inalienable rights of mankind. My experience at the Pride Parade last Sunday brought me a deeper appreciation for that foundational principle, and for the efforts of those who work every day to extend the blessing of this social contract to the hopes, dreams and pursuits of all our citizens.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

In two 5-4 decisions, Supreme Court narrows Title VII protection against harassment and retaliation

By Charlotte Fishman

What Senator Warren has labeled “the Corporate Capture of the Federal Courts”  was on full display at the United  States Supreme Court today.  The Court issued Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two impassioned dissents that she read from the bench.

To attorneys who represent victims of discrimination of harassment  and retaliation, these decisions illustrate a depressingly familiar scenario of judicial bias:    the majority is far more concerned with protecting employers from lawsuits than vindicating employees’ statutory right to be free from discrimination and retaliation.

In Nassar, Justice Kennedy’s words convey solicitude for the welfare of employers that is in sharp contrast to his disdainful view of employees:  “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The majority’s lack of comparable concern for the “financial and reputational” cost of retaliatory harrassment to the employee is noteworthy, as is its unquestioning acceptance of the hypothetical danger rarely, if ever, encountered by employee-side practitioners:  “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.”

In Ball, Justice Alito’s opinion reveals the majority’s staggering ignorance of (or indifference to) the power of low level supervisors to use their employer-delegated authority to harass employees under their control.  The opinion limits employer’s vicarious liability for workplace harassment to the actions of supervisors who have the power to “hire, fire, demote, promote, transfer or discipline.”   In so ruling, the Court threw out EEOC Enforcement Guides in effect since 1999, and made it harder for employees to obtain redress for harassment by defining individuals who control day-to-day schedules and assignments as mere “co-workers.”

The tendency of the federal courts to favor corporate interests over that of individuals has become the subject of increasing public concern, and today’s decisions provide additional fuel for the argument that  we need greater experiential diversity on the federal bench.  Hopefully, Congress will accept Justice Ginsburg’s invitation to “correct this Court’s wayward interpretations of Title VII” and  restore the Title VII protections that are weakened by today’s cases.  But in the long run, what is needed to restore balance to our judicial system is the appointment of federal judges who are better attuned to the rights of individuals.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Welcome to the CELA VOICE!

Welcome to the CELA VOICE!

CELA VOICE is a project of the California Employment Lawyers Association.  Our goal is nothing short of changing the discussion about issues of importance to California employees.  Our method is simple.  We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health.

The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.  Because we are attorneys who represent employees in lawsuits, we spend our professional time probing how employment practices and management decisions can go so far awry that loyal employees feel they have no recourse short of the courtroom.  Working up our cases often takes us to the top levels of management and always requires us to learn about industry practices.  Over time (and many of us have been practicing for decades), we cannot help but recognize the trends.

Why is this perspective needed when plenty of bloggers are already out there ready to offer their opinion on controversies in the workplace?  After all, almost anyone who blogs or writes opinion pieces is a worker.  The answer is this — very few journalists or bloggers have the depth of access to information and the insider view that we gain every time we take a case on behalf of an employee.  (And, let’s face it, journalists can’t put their sources under oath.)  That being said, we share the journalists’ fealty to facts.  In trial, lawyers are forced to focus on the evidence and drop the speculation.  We have tasked our contributors to do the same, so that our readers can count on solid information and evidence-based opinions that should stand the test of cross-examination.  Indeed, not all of our contributors share the same perspective on all issues, so what you are reading is not any sort of “party line.”

Which are the industries where sexual harassment is commonplace?  How are employers using the “exempt” designation to force their employees regularly to work 80 hours a week without overtime?  What is being done to protect farmworkers from exposure to pesticides?  When whistleblowers step forward to report illegal practices, what really happens to them?  If you want to know the answer to these questions, just ask the lawyers who represented the workers.  Or, better yet, subscribe to the CELA VOICE!

Jean Hyams

About Jean Hyams

Jean K. Hyams is a founding partner of Levy Vinick Burrell Hyams LLP, a Bay Area boutique law firm focused on representing employees in employment disputes. She left a career as a manager in high-tech companies to pursue her dream of becoming a civil rights lawyer. She has been named by Northern California Super Lawyers as one of the Top 50 Women Lawyers in Northern California for the past five years and her firm has been rated one of the Best Law Firms (Tier 1 – Employment Law) by U.S. News and World Report. After almost a quarter-century in practice, she now also serves as a court-appointed and private mediator of employment disputes. Jean is Co-Chair of the CELA VOICE.

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