Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability

Underwork, Work‐Hour Insecurity, and A New Approach to Wage and Hour Regulation

“…When a worker is sent home early due to an “act of God” such as extreme weather that cuts power to a company facility, no reporting pay is due (Alexander, Haley‐Lock, and Ruan ). An additional exemption is available to employers who give advance notice of lack of work, though statutes often prescribe in great detail the length and form of such notice (Alexander, Haley‐Lock, and Ruan ). Employers are also permitted to ask for volunteers to go home early from a shift, with no reporting pay owed.…”

“…Though information on reporting‐pay violations is extremely limited, our analyses of the Retail Action Project data found that among respondents reporting that they had been sent home early at least once, less than one‐third said that they “always” received reporting pay, while 35 percent “never” did, despite the requirements of New York's state reporting‐pay law (analyses available from authors; Luce and Fujita ). In addition, lawsuits in any state by workers challenging employers’ failure to provide reporting pay are extremely rare (Alexander, Haley‐Lock, and Ruan ).…”

“…Still more worrisome for workers’ scheduling stability, employers can avoid reporting‐pay obligations by shortening the lengths of shifts they schedule or more dramatically by abandoning most advance scheduling in favor of requiring workers to be on call to get their hours (Alexander, Haley‐Lock, and Ruan ). In fact, American service firms may already be moving toward reduced shift lengths (Greenhouse ).…”

“…In fact, American service firms may already be moving toward reduced shift lengths (Greenhouse ). Reporting‐pay laws may therefore produce the perverse effect of underemployment, as firms seeking to comply with the law yet maintain scheduling flexibility offer workers ever shorter shifts, so long as employers have the freedom to call workers in at the last minute (Alexander, Haley‐Lock, and Ruan ; Neumark and Wascher ). Finally, because reporting‐pay laws apply only to “employees” and exclude independent contractors, they may provide one more reason for employers to classify workers as contractors rather than employees, depriving workers of not only their reporting‐pay rights but also their rights under much of state and federal labor and employment law (National Employment Law Project ).…”

“… The authors have used the same framework—work‐hour inadequacy, variability, and unpredictability—to describe the phenomenon of work‐hour insecurity in a forthcoming companion law review article that provides a detailed, technical legal analysis of reporting pay laws (Alexander, Haley‐Lock, and Ruan, ). …”