Council set to pursue “Fair Work Week” scheduling ordinance as city’s Highest Priority

Published On August 16, 2016 | By Rob Arias | News & Commentary, Opinion/Editorial, Politics

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.

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.

The complete city agenda with all related documents can be viewed online.

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About The Author

is a third generation Californian and East Bay native who moved to Emeryville in 2003. A new parent in the community, he can often be seen walking his French Bulldog rescue "Fiona" around his Park Avenue District neighborhood, traversing the greenway on his bike or enjoying his favorite Emeryville small businesses. Rob's "day job" is as a creative professional.

22 Responses to Council set to pursue “Fair Work Week” scheduling ordinance as city’s Highest Priority

  1. Tom Stieber says:

    Interesting idea with noble aspirations, but it really stifles how different types of businesses can operate, and in particular for foodservice and retail, which this most strongly affects, it’s going to be very difficult for both the employers and the employees. My feeling is that businesses will end up not adhering to these rules and just ignore them. Then the question is, will the city have to spend money to hire new staff to police and enforce these rules? And how will businesses pay for the additional compliance / recordkeeping? To me, this just adds another layer of complicated bureaucracy that neither the employers nor the employees will really want. While I’m all for the privileged looking out for the underrepresented ‘little guy’ in society, it sadly backfires when politicians are not in the shoes of either the employers or employees and therefore don’t really understand how running a business works. Adding layers and layers of complicated, bureaucratic rules just isn’t a good way to achieve these noble goals. But it’s worth having a serious conversation about the problems and find realistic ways to tackle them.

    • I agree Tom, and the study that Emeryville’s own Economic Development and Housing Manager, Chadrick Smalley, did (which surveyed 3 times as many employees than EBASE’s survey and with less biased questions) showed that the majority of workers in Emeryville did not have a problem with their scheduling – 90%!! From the study : “The survey data tell us that almost nine out of 10 employees have input into their schedule and that just over one in ten employees find short notice schedule changes to be not at all problematic.” It’s a wonder why the council finds this issue to be a top priority of all the issues in Emeryville that could be addressed.

      And the study also found that the majority of workers who have flexibility (or “short notice scheduling”) in their schedules are those within food service, who choose to be in those jobs precisely because they *do* have the flexibility. They are students, or have multiple jobs, or artists, where the kind of flexibility they need is provided by restaurants and cafes.

      The other main point that is being missed by EBASE, SEIU and the city council is that reason for changing schedules is the employees themselves – who call in sick, who want days off at the last minute, who quit with no notice or don’t show up. That is what causes employers to *have* to change the schedules to fill those shifts. Most business owners and managers who deal with the scheduling would love to have stable, consistent schedules for all our employees that never change, and as the study shows, most of us do give at least a week’s notice of schedules if not more. And we do offer flexibility when employees need it. But having totally consistent scheduling isn’t possible when our employees don’t show up or call in sick or we get extra work that comes in where we need people to fill those shifts. How is a business supposed to run if we can’t cover shifts that employees themselves don’t show up for?

      The city council seems to believe that businesses are “the problem” here, but the data shows this is not at all the case. And if this ordinance is pushed through, employers will have our hand tied and there will be less flexibility for all employees, not more, at the expense of the very small percentage of employees who have a problem with schedules, because businesses will not want to be penalized for schedule changes.

  2. Anonymous says:

    It’s important to realize this has nothing to do with Emeryville or its workers. The SEIU wants to make it difficult for non-union businesses to operate in retail and restaurants nationwide to force unionization. The SEIU came to Emeryville because it is small and easy to manipulate and because our current City Council will work on their behalf.

    Ruth Atkin and Dianne Martinez are working with the SEIU to help them deliver the SEIU’s national agenda. Emeryville, its workers, and its businesses are irrelevant in this discussion.

  3. Bob Hughes says:

    Hi Rob,

    Can you give us the exact wording, i.e. the Council’s exact words, and its source for your claim that they have given it “top priority”?

    Many thanks – Bob Hughes

    • Anonymous says:

      Bob, it was set as the top priority by city council this spring when the city attorney requested the city council prioritize the various projects they were working on. There’s no question city council set this as the top priority. Your disbelief is understandable. It Is hard to believe. We are dealing with the worst city council this city has ever seen.

    • Rob Arias says:

      Thanks Bob. Yes you can watch the 3/15 council meeting above where they discuss this. Mayor Martinez definitively states “Fair Work Week is my highest priority” [2:48:09] and the actions tonight and I anticipate prior to the election I suspect will fortify this. Apparently labor group campaign donations are also her “highest priority”.

  4. nGruen says:

    What actions can we take to voice our disagreement?

    • Rob Arias says:

      1). Email them and ask them why this is a higher priority than your concerns:
      Dianne Martinez:
      Nora Davis:
      Scott Donahue:
      Ruth Atkin:
      Jac Asher:

      2). Pay close attention this election:
      Three seats will be up for grabs this election and the current council majority led by Martinez will be determined to maintain their ideological grip on this council by electing their candidates. We will working hard to vet candidate priorities for voters this election.

      • Anonymous says:

        Go to your local cafe or restaurant owner and tell them you’ll support them and will stand up against the Emeryville city council. You have no idea how much it would mean to the local businesses who are struggling to survive to hear that the residents support them.

  5. Anonymous says:

    I wouldn’t be surprised if the SEIU just began placing candidates in the election. Why rent a city council when you can own?

  6. M says:

    For another point of view, see today’s NYTimes story on unions in Las Vegas and what they’ve done for women workers. Why Las Vegas is a great place for working class women… What I really want to say, however, is that snide comments keep this blog from being a truly useful news spot. In the end, it is a vehicle for one point of view and thankfully, it is given the benefit of the doubt by the well expressed constructive first comments that add context and insight, where there are no “digs” at imagined opponents. As editor, Rob, you can either lead or divide. In the end after so much good effort, and with those intelligent first responders, you seem to want to divide to push your point across. Now you’re drawing responders based on your own cynical remarkks – 10PM Aug 16 – this is not a good basis for community building. Do vet candidates’ priorities, but please don’t demean yourself and your readers in the process by descending to character attacks. Trust that your fact-based points provide good information, and please drop the personal character assaults.

    • Rob Arias says:

      Thanks M. I want and deserve these criticisms. In the end I’m just a resident that wants US to be the “Top Priority” and is frustrated by our priorities being eschewed for special interest groups. Sometimes the frustration boils over.

      • Bob Hughes says:

        Hi Rob – M’s comment to you is very acute and I admire you for your very candid reply. Many thanks.

        Since you wrote that the source of your quote (“Top Priority”) was from a City Council meeting on March 16, 2016 may I ask you why it took so long – five months – to focus on this? You speak of the quote as a “Council top priority” whereas Mayor Martinez says “my” highest priority. Have you have you ever checked to see if it was then or ever the top priority of the other four council members? Is it still Mayor Martinez’s top priority? – the local and global changes this summer have caused many priorities to shift almost weekly, if not daily. Might you be slipping into ‘politics’ now that we’re nearing the election?

        I am troubled by your sweeping generalization that this is “the worst city council this city has ever seen.” From my point of view it’s the very best, and I’ve been here over 30 years.

        Respectfully – Bob Hughes

        P.S. – Isn’t Your ‘Community Poll’ rather stacked in its selection of choices? wouldn’t “Public Safety” by its solipsistic nature always be first, particularly in this summer of discontent?

      • Rob Arias says:

        Bob, the “worst city council …” quote was from another commenter. I think you need to watch the video and the subsequent follow up video if you’re not clear where the priorities netted out. The other way would be to watch their actions and how they dedicate staff time … which appears to be toward drafting and administering this ordinance.

    • Anonymous says:

      When your city council sells out the local community to an outside group, character needs to be called into question.

      When 4 out of 5 city council members show up at an SEIU rally together in violation of state law and one declares that the city WILL have the highest minimum wage in the country BEFORE a single vote has been taken, character needs to be called into question.

      When a council member fails to recuse themselves from a vote involving and led by a group they have been a longstanding member of, character needs to be called into question.

      When one of the city council members appears to be padding their political bank account with favors to the SEIU, character needs to be called into question.

      When the workers and the poor are getting kicked out of their jobs so that the labor unions can give themselves a raise, character needs to be called into question.

      When a local union figure is trying to advance her career by kicking minorities, students, and low income residents out of theirs, character needs to be called into question.

      Sure, drop the snide comments, but by all means Rob, keep questioning character.

  7. Anonymous says:

    I wonder what the 400 or so employees of Jamba Juice who are losing their jobs to Texas in 6 months think about Fair Workweek and the MWO. Or the employees of Bucci’s. Or Pottery Barn. Or Pier 1. Or Elephant Bar. Or Teacake Bakeshop. Or Francesca’s. Or Liba Falafel. And on and on. Or all the bus boys, dishwashers, security guards, drivers and students in Emeryville who have been let go. Or the cashiers at Target and Panera who have been replaced by self-serve kiosks. And on and on.

    I imagine there are a lot of opinions out there from the thousand-plus workers who have lost their jobs in Emeryville.

    I wonder when it will all stop,

    • andre' carpiaux says:

      If you want your life to be miserable, then follow everyone else’s schedules, listen to their voices and complaints and be their slave at your expenses If it reaches the authorities of the city council majority ( slate ) as it was with the era of the ” BUDAKAAT ” then your are in trouble.They would move in with assault weapons to make you understand that they are in power to do anything even in the event that shoot out may occur from outright provocations in violation of your civil rights ( hopes and dreams )
      This is NO jokes. It amazes me that Ruth Atkin stands out for the labor side when her jobs is in the top management in health care domain whilst all her slate decisions where against the workingmen ! Ruth has been taken and used to do the dirty work of the BUDAKAAT. I regret she has been in that position each time she was the Mayor she did not realizes she was manipulated by the cunning of her acolyte on the BUDAKAAT slate .
      Ruth is a good person genuinely concerned with the plight of the unfortunate folks
      That Ruth stand for the ” Fair- Work…bla la bla ” is strange to me since she sees everything ” ambiguous ” that needs unbiased analysis,

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