Schedules That Work Act

I 116TH CONGRESS 1ST SESSION H. R. 5004 To permit employees to request changes to their work schedules without fear of retaliation and to ensure that employers consider these requests, and to require employers to provide more predictable and stable schedules for employees in certain occupations with evidence of unpredictable and unstable scheduling practices that negatively affect employees, and for other purposes. IN THE HOUSE OF REPRESENTATIVES NOVEMBER 8, 2019 Ms. DELAURO (for herself, Mr. LOWENTHAL, Mrs. NAPOLITANO, Mr. LEVIN of Michigan, Mr. PASCRELL, Mrs. DINGELL, Ms. NORTON, Mr. POCAN, Mr. SERRANO, Mr. CICILLINE, Mr. AGUILAR, Mr. GRIJALVA, Ms. OMAR, Mr. KILDEE, Ms. ESHOO, Ms. LEE of California, Ms. SCHAKOWSKY, Mr. ESPAILLAT, Mr. HASTINGS, Mr. KHANNA, Mr. LARSON of Connecticut, Mr. RYAN, Mrs. TORRES of California, Mr. DANNY K. DAVIS of Illinois, Mrs. WATSON COLEMAN, Mr. SMITH of Washington, Mrs. CAROLYN B. MALONEY of New York, Mrs. BEATTY, Mr. DESAULNIER, Ms. BONAMICI, Ms. JAYAPAL, Miss RICE of New York, Mr. MCGOVERN, Mr. GARCI´A of Illinois, Mr. PALLONE, Ms. MCCOLLUM, Mr. TONKO, Mr. KENNEDY, Mr. LANGEVIN, Ms. PINGREE, and Ms. ROYBAL-ALLARD) introduced the fol- lowing bill; which was referred to the Committee on Education and Labor, and in addition to the Committees on House Administration, Oversight and Reform, and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provi- sions as fall within the jurisdiction of the committee concerned A BILL To permit employees to request changes to their work sched- ules without fear of retaliation and to ensure that em- ployers consider these requests, and to require employers to provide more predictable and stable schedules for em- VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 5004 IH ployees in certain occupations with evidence of unpredict- able and unstable scheduling practices that negatively affect employees, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; FINDINGS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Schedules That Work Act’’. 5 (b) FINDINGS.—Congress finds the following: 6 (1) The vast majority of the United States 7 workforce today is juggling responsibilities at home 8 and at work. Women are primary breadwinners or 9 co-breadwinners in 64 percent of families in the 10 United States. 11 (2) Despite the dual responsibilities of today’s 12 workforce, both hourly and salaried workers often 13 have little ability to make changes to their work 14 schedules when those changes are needed to accom- 15 modate family responsibilities. 16 (3)(A) Mothers working in low-wage jobs are 17 more likely to be the primary or sole breadwinner for 18 their families than mothers working in higher-wage 19 jobs. For example, nearly 7 in 10 mothers in the 20 one-fifth of households in the United States with the 21 lowest incomes bring home all or most of their fami- 22 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 5004 IH lies’ income, compared to less than one-third of their 1 counterparts in the highest-income quintile. 2 (B) At the same time, low-wage workers have 3 the least control over their work schedules and the 4 most unpredictable schedules. Across industries, 5 more than half (55 percent) of low-paid hourly work- 6 ers report that they receive a week or less of notice 7 of their work schedules, and nearly two-thirds (65 8 percent) report that their employer controls the tim- 9 ing of their work hours. In some industries, ‘‘just- 10 in-time’’ scheduling practices, which base workers’ 11 schedules on perceived consumer demand to mini- 12 mize labor costs, are particularly common. Employ- 13 ers using these practices often post work schedules 14 with little notice, vary work hours widely from week 15 to week, cancel shifts at the last minute, and sched- 16 ule employees for ‘‘on call’’ shifts (requiring an em- 17 ployee to call in to work to find out whether the em- 18 ployee will have to work later that day) or 19 ‘‘clopening’’ shifts (requiring an employee to work a 20 closing shift at night followed by an opening shift a 21 few hours later). For example, surveys of nearly 22 30,000 hourly workers employed by the 80 largest 23 retail and food service chains in the United States 24 show that— 25 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 5004 IH (i) about two-thirds of hourly retail and 1 food service workers receive their work sched- 2 ules with less than 2 weeks’ advance notice; 3 (ii) more than one in 4 hourly retail and 4 food service workers have been scheduled for 5 on-call shifts, and half have worked ‘‘clopening’’ 6 shifts; and 7 (iii) only one in 5 hourly retail and food 8 service workers report working a regular day- 9 time schedule. 10 (4) Unfair work scheduling practices make it 11 difficult for low-wage workers to— 12 (A) provide necessary care for children and 13 other family members, including securing and 14 maintaining stable child care; 15 (B) access and receive needed care for the 16 workers’ own serious health conditions; 17 (C) pursue workforce training; 18 (D) get or keep a second job, which many 19 workers need to make ends meet; 20 (E) plan for and access transportation to 21 reach worksites; and 22 (F) qualify for and maintain eligibility for 23 needed public benefits and work supports, such 24 as child care subsidies and benefits under the 25 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 5004 IH supplemental nutrition assistance program, due 1 to fluctuations in income and work hours. 2 (5) A growing body of research demonstrates 3 that unstable and unpredictable work schedules have 4 significant detrimental impacts on sleep quality, 5 mental health, and happiness, and are associated 6 with unstable child care arrangements and negative 7 health and behavioral outcomes for children. These 8 work schedules—and the work-family conflict they 9 produce—are also associated with higher rates of 10 turnover, which creates further instability for em- 11 ployers and workers. Workers of color are also more 12 likely than their White counterparts, even compared 13 to White coworkers at the same company, to experi- 14 ence unstable work schedules. For example: 15 (A) Unstable work schedules lead to more 16 household economic strain and time conflicts, 17 and hurt the well-being of parents. While 18 household economic strain, time conflicts, and 19 the well-being of parents may all negatively im- 20 pact the health and behavior of a child, a par- 21 ent’s well-being is the most significant factor in 22 determining the behavior and health outcomes 23 of a child. The more severe the work schedule 24 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 5004 IH instability, the worse the child’s behavior and 1 health outcomes. 2 (B) The exposure of a parent to on-call 3 shifts and last-minute shift changes are associ- 4 ated with more unstable child care arrange- 5 ments and with the use of siblings to provide 6 care. 7 (C) Work schedule instability causes more 8 work-family conflict, which increases the chance 9 that a worker will be forced to leave his or her 10 job. This turnover is associated with downward 11 mobility of the worker’s earnings. 12 (D)(i) Relative to White workers, workers 13 of color are more likely to— 14 (I) have cancelled shifts; 15 (II) have on-call shifts; 16 (III) be involuntary part-time work- 17 ers; 18 (IV) have trouble getting time off; 19 and 20 (V) work ‘‘clopening’’ shifts, as de- 21 scribed in paragraph (3)(B). 22 (ii) The statistics described in clause (i) re- 23 main true after controlling for demographics, 24 human capital, worker power, firm segregation, 25 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 5004 IH and discordance with the race or ethnicity of 1 the worker and the manager. Race gaps in job 2 quality are greater for women of color. 3 (E) Workers who receive shorter advanced 4 notice, those who work on-call shifts, those who 5 experience last minute shift cancellation and 6 timing changes, and those with more volatile 7 work hours are more likely to experience hun- 8 ger, residential hardships, and more overall eco- 9 nomic hardship. 10 (6) Unpredictable and unstable work schedules 11 are common in a wide range of occupations, with 12 evidence of particular concentration in food service, 13 retail, cleaning, hospitality, and warehouse occupa- 14 tions. These occupations are critically important to 15 the United States economy. 16 (7) Employers that have implemented fair work 17 scheduling policies that allow workers to have more 18 control over their work schedules, and provide more 19 predictable and stable schedules, have experienced 20 significant benefits, including reductions in absentee- 21 ism and workforce turnover, and increased worker 22 morale and engagement. For example, when Gap 23 Inc. piloted strategies to make work schedules more 24 stable and predictable for employees, the Gap Inc. 25 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 5004 IH stores that implemented these strategies experienced 1 higher productivity, and a 7-percent increase in 2 sales, compared to those Gap Inc. stores that did not 3 implement these strategies. 4 (8) This Act is a first step in responding to the 5 needs of workers for a voice in the timing of their 6 work hours and for more predictable schedules. 7 SEC. 2. DEFINITIONS. 8 As used in this Act: 9 (1) BONA FIDE BUSINESS REASON.—The term 10 ‘‘bona fide business reason’’ means— 11 (A) the identifiable burden of additional 12 costs to an employer, including the cost of pro- 13 ductivity loss, retraining or hiring employees, or 14 transferring employees from one facility to an- 15 other facility; 16 (B) a significant detrimental effect on the 17 employer’s ability to meet organizational needs 18 or customer demand; 19 (C) a significant inability of the employer, 20 despite best efforts, to reorganize work among 21 existing (as of the date of the reorganization) 22 staff; 23 (D) a significant detrimental effect on 24 business performance; 25 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 5004 IH (E) insufficiency of work during the peri- 1 ods an employee proposes to work; 2 (F) the need to balance competing sched- 3 uling requests when it is not possible to grant 4 all such requests without a significant detri- 5 mental effect on the employer’s ability to meet 6 organizational needs; or 7 (G) such other reason as may be specified 8 by the Secretary of Labor (or the corresponding 9 administrative officer specified in section 9). 10 (2) CAREER-RELATED EDUCATIONAL OR TRAIN- 11 ING PROGRAM.—The term ‘‘career-related edu- 12 cational or training program’’ means an educational 13 or training program or program of study offered by 14 a public, private, or nonprofit career and technical 15 education school, institution of higher education, or 16 other entity that provides academic education, career 17 and technical education, or training (including reme- 18 dial education or English as a second language, as 19 appropriate), that is a program that leads to a rec- 20 ognized postsecondary credential (as identified under 21 section 122(d) of the Workforce Innovation and Op- 22 portunity Act (29 U.S.C. 3152(d)), and provides ca- 23 reer awareness information. The term includes a 24 program allowable under the Workforce Innovation 25 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 5004 IH and Opportunity Act (29 U.S.C. 3101 et seq.), the 1 Carl D. Perkins Career and Technical Education 2 Act of 2006 (20 U.S.C. 2301 et seq.), or the Higher 3 Education Act of 1965 (20 U.S.C. 1001 et seq.), 4 without regard to whether or not the program is 5 funded under the corresponding Act. 6 (3) CAREGIVER.—The term ‘‘caregiver’’ means 7 an individual with the status of being a significant 8 provider of— 9 (A) ongoing care or education, including 10 responsibility for securing the ongoing care or 11 education, of a child; or 12 (B) ongoing care, including responsibility 13 for securing the ongoing care, of— 14 (i) a person with a serious health con- 15 dition who is in a family relationship with 16 the individual; or 17 (ii) a parent of the individual, who is 18 age 65 or older. 19 (4) CHILD.—The term ‘‘child’’ means a biologi- 20 cal, adopted, or foster child, a stepchild, a legal 21 ward, or a child of a person standing in loco 22 parentis to that child, who is— 23 (A) under age 18; or 24 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 5004 IH (B) age 18 or older and incapable of self- 1 care because of a mental or physical disability. 2 (5) COMMERCE TERMS.—The terms ‘‘com- 3 merce’’ and ‘‘industry or activity affecting com- 4 merce’’ have the meanings given the terms in section 5 101 of the Family and Medical Leave Act of 1993 6 (29 U.S.C. 2611). 7 (6) COVERED EMPLOYER.— 8 (A) IN GENERAL.—The term ‘‘covered em- 9 ployer’’— 10 (i) means any person engaged in com- 11 merce or in any industry or activity affect- 12 ing commerce who employs 15 or more em- 13 ployees (described in paragraph (9)(A)); 14 (ii) includes any person who acts, di- 15 rectly or indirectly, in the interest of such 16 an employer to any of the employees (de- 17 scribed in paragraph (9)(A)) of such em- 18 ployer; 19 (iii) includes any successor in interest 20 of such an employer; and 21 (iv) includes an agency described in 22 subparagraph (A)(iii) of section 101(4) of 23 the Family and Medical Leave Act of 1993 24 VerDate Sep 11 2014 02:02 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H5004.IH H5004 pamtmann o [Text truncated for display. 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