What if I told you our city is set to pursue an experimental labor ordinance being directed by the lobbyist group EBASE (East Bay Alliance for a Sustainable Economy). An ordinance that may end up helping some as the expense of others. An ordinance deemed the city’s “top priority” by our council. Such a priority that Councilmember Ruth Atkin and Mayor Dianne Martinez have taken to the local media to begin lobbying support for it. An ordinance that they’ve indicated they intend to fast track through prior to the November election (Deja Vu?).
The City will hold a second study session tonight at 6pm to review a retail scheduling ordinance being marketed by EBASE and ACCE (Alliance of Californians for Community Empowerment) as “Fair Work Week”. The first May 17th Special Study Session can be watched in the feature area above.
The City’s “Top Priority”?
Now perhaps I interact in different circles than our Councilmembers. Neighbors I speak with express frustrations with traffic, concerns about rising crime, improving pedestrian and bike-ability in key dangerous intersections, amenities like park space, our regional issues with homelessness and especially tenant protections/rent stabilization measures. None have expressed to me that a retail scheduling ordinance should be the city’s “top priority” (tenant protections are currently being studied by the city but are downstream from this ordinance).
Make no mistake, Emeryville is a small city with a proportionately small staff & small legal department. An ordinance of this magnitude and complexity will come at the expense of other priorities and all priorities run through the bottleneck of our legal department.
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The Council reviewed City Attorney priorities at the March 15th Council Meeting [1:55:20].
Drivers of the Ordinance
Wage discrepancy and underemployment are both huge issues in our country especially in a contentious election year. Our Council sees our Minimum Wage Ordinance and this Scheduling Ordinance working in tandem as something that will remedy both of these. They will force wages up and then force employers to turn more of their existing employees into full-time. Any businesses that leave Emeryville and the employees that lose their jobs as a consequence of these policies are considered “collateral damage” to the cause.
One of the drivers of underemployment admitted to by our council is our experimental MWO. Councilmember Martinez noted during the MWO discussions that she though our businesses were “creative enough to make it work”. Unfortunately some businesses are being “creative” by cutting shifts. As most economists predicted, the anecdotal evidence is that a large jump in the minimum wage is reducing employment or perhaps in this case, leading to more part-time employees (more businesses have in fact left Emeryville then opened in five of the last seven months according to the city’s monthly progress reports). How many businesses and how many employees we’re not quite sure as the city has conveniently opted to forgo the one-year study of the MWO until fall. Understanding the impacts of the MWO first could be valuable in determining the right course here.
Another big driver of underemployment are benefits, specifically healthcare. The exorbitant cost of health care in our country has made it appealing to employers to retain more part-time employees. Employees must work an average of 30 hours a week to qualify for government mandated healthcare AKA The Affordable Care Act/ObamaCare.
If this scheduling ordinance passes, the question will be how will employers react to these mandates? Little Emeryville is effectively serving as the guinea pig for EBASE and ACCE’s theories and we’re making our stores the sacrificial lamb to try to impact regional change.
Basic Parameters of the Ordinance
The framework of the ordinance is based on an Albuquerque, New Mexico measure where it originated. The ordinance failed to pass though and now the Center for Popular Democracy that initiated it is targeting Emeryville. San Francisco passed a Formula Retail Employee Rights Ordinances in 2014 that the city is also drawing from. This ordinance would potentially require employers to:
- Provide 2-3 weeks advance notice of work schedules to employees.
- Provide “predictability pay” for work schedule changes that occur within the advance notice period.
- Offer additional hours to existing part-time employees before hiring new employees.
- Allow employees to decline back-to-back closing and opening shifts without retaliation.
Advance work scheduling is something that I think most people can relate to. 70% of employers are already providing at least one week scheduling notice and 32% of employers are providing two-week notice under their own employment policies according to a city sponsored employee survey analysis shown below. EBASE is of course pushing for three weeks notice (this may be tactical so that if a two-week notice is applied, it will appear that they “compromised”). The survey generally concluded that scheduling was not huge problem for employees defying EBASE’s own study [PDF].
The Predictability Pay would prevent employers from asking employees to fill-in for other absent employees or asking employees to stay longer during an unforeseen surge in business. Businesses often point to reliability issues with employees necessitating the need for this flexibility. The smaller the staff, the greater the impact an absent employee has on the business. Food Service industries are especially susceptible to these business surges and flexibility with employees schedules is necessary to their model.
Scheduling seems less of a problem but underemployment is. The city hopes to thwart businesses hiring more part-time employees by enacting a complicated policy that would require employers to first offer any new hours to existing employees within the same job classification.
The back-to-back closing and opening shifts or “clopenings” as they are being referred to by EBASE, is administered by some employers. Surprisingly, only 9% of city survey respondents rated this as “somewhat of a problem” for them.
Employers that violate this ordinance will be assessed various financial penalties.
The impacts of SF’s ordinance are still being studied but this SF Chronicle published article by Employment Policies Institute research director Michael Saltsman has indicated that 20% surveyed businesses had cut back on the number of part-time hires, and a similar number were scheduling fewer employees per shift. More than one-third of responding businesses were offering employees less flexibility which is considered a benefit to many employees.
It should be noted that SF’s ordinance only applies to formula retail employers where Emeryville is considering applying this to all employers. Employers have already expressed the headache of administering all of these HR taxing policies.
Possible Outcomes Tonight
City Council will discuss which options it wants to pursue and which businesses to regulate – Formula Retail, Fast Food, City Defined “Large” Businesses of over 55 employees, Small Businesses … or all of the above.
One less-punitive approach would be creating incentives to spotlight the “good actors” by providing a sort of “Fair Work Week” business designation similar to having LEED or GreenTrip certification. The city could provide credits to those that met the criteria of this designation. This would ideally encourage the few “bad actors” to come into the fold of the “good actor” camp. It is possible, but unlikely, that they could take no action.
The question remains how much can our city experimentally legislate employers before they finally give up on Emeryville. Can we give employees leverage with their employers by enacting policies that ultimately reduce the amount of jobs? Some members of Council have persisted with the narrative that simplistically divides the world into two camps: Employees who are the oppressed and the businesses who are the oppressors.
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