I’m sure you know someone who worked at a national
chain retailer and was frustrated by that employer’s scheduling practices. They’d
swear that some of the theories encouraged in Retail Management 101 centered on
on-call or last-minute scheduling whereby some bosses don’t provide a worker’s
schedule until the day before -- or even minutes before -- the shift.
It’s a problem, for sure. But it has always been
one addressed by the workers. If they didn’t like it, they quit.
Scheduling is one of the primary reasons the retail
industry has the highest turnover rate in the US economy – even higher than the
fast food sector’s. Hourly store employees have a turnover rate of 65% while fast
food workers turnover at “only” 50%.
Despite those numbers showing free markets working
as they should (an employee is not bound to an employer and vice versa),
Governor Andrew Cuomo thinks that New Yorkers have no power or chance to make
such decisions.
So, in September, he commissioned the Department of
Labor to hold special hearings about employee scheduling in response to those
long-held practices. A couple of weeks back, the DOL issued its suggestions to
which Cuomo has given his full backing.
As with any public policy coming out of Albany of
late, it overreacts to an issue and produces rules and laws that will do more harm
than good while affecting the economy as a whole rather than the narrow scope
for which those policies were intended.
Now, all private sector employers like manufacturers,
doctors, entertainment venues, restaurants and the targeted retailers will be
saddled with overwhelming standards for scheduling of hourly employees (interestingly,
public sector workplaces are not included in the proposed regulations).
The new rules would mandate 14 days of advance
notice for work schedules. If a worker has to be called in outside of his schedule,
he would receive an extra 2 hours of pay. If an employee’s shift is cancelled,
and notice is not given within 72 hours of that, she is entitled to receive 4 hours
of show-up pay.
The State does allow employers an escape clause for
“Acts of God” (cancellations due to hazardous weather and power outages) and
some circumstances beyond the employer’s control (which aren’t clearly defined)
but overall they do not allow the employers “flexibility” -- the incredibly misleading
buzzword that keeps appearing in the State’s press releases for the standards.
If anything, it gives employers inflexibility and
makes New York’s already unwelcoming business climate even more depressing.
Consider the following:
Suppose a golf course wants to schedule their
grounds crews, service personnel and cooks. Under Cuomo’s plan, they have to
set it in stone 2 weeks in advance.
A golf course’s business activity is not linear –
its goes up and down with the weather. A sunny day brings in the golfers; while
rains keep customers away. There is no weather forecaster who can predict with any
certainty 2 weeks out (some would question whether they can predict 2 days
out).
But, the golf course will have to conform to this
new rule, plan staffing 2 weeks out and hope to God that they know the weather
72 hours in advance or they will be paying show-up pay to every one of their
employees. For the period of the rains, they will have almost no revenues, but
will incur costs that they never had to before.
Those costs will appear with regularity (imagine if
subsequent summers are as wet as 2017’s) and, of course, will have to be passed
on to customers with higher greens fees.
This scenario doesn’t even fall under the “Act of
God” allowances because the business was not forced into closure and some
duffers will venture out sans carts, so it’s not as if there was no business
activity -- and showers are not considered a weather emergency.
How about a larger doctor’s office such as a
communal practice or an urgent care facility? What if one of the staff catches
sickness from a patient and is out of commission?
That doctor will have to call-in someone who had
been scheduled off – and for each day in the 72-hour notification cycle
that person works, the doctor will have to pay her the 8 or 10 hour wages plus 2 hours of call-in pay. Where do those
added costs go? In higher fees to patients and insurers.
Or, what happens if I have a breakdown at Confer
Plastics and a machine is not making products or money and 15 people have to be
kept home?
Is that an issue beyond the employers’ control? Yes.
But in the world run by government bureaucrats it’s
a “maybe” or “no”. I could get in a disagreement with a Department of Labor
administrator who could say it is in my control because, in their view, I hadn’t
done proper preventive maintenance, I should have had a $20,000 part sitting on
a shelf, or I didn’t try to find replacement work. You see, it’s all in the eye
of the beholder.
The Department of Labor’s new proposals are an
overreaction and an absolute danger to business and, ultimately, the consumers
who pay for their products or services. There is a chance to change them,
though. The DOL is accepting public comment through December. If you are
concerned about your bottom line, drop them a line at hearing@labor.ny.gov.
From the 27 November 2017 Greater Niagara
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