Out of Sync: How Unemployment Insurance Rules Fail Workers with Volatile Job Schedules

Executive Summary

Millions of Americans are employed in jobs with volatile schedules that fluctuate weekly, both in terms of total hours and shift times; these workers receive little advance notice of their shifts and are frequently required to work “on call.” One consequence of job-schedule volatility is job loss: for some workers, the mismatch between job schedules and the rest of their responsibilities become untenable, either forcing them to quit or leading them to be fired from their jobs. In these cases, workers and their families need a safety net to help them while they seek new, hopefully more stable, employment. For many jobless workers, public cash assistance is not available, often leaving unemployment insurance (UI) as the only safety net. This paper explores the extent to which UI responds to the needs of workers who are jobless due to volatile work schedules.

Our analysis of access to UI for workers with volatile schedules is based upon legal research and interviews with agency staff or advocates in 10 states. We find that, with some exceptions, UI rules fail to address the needs of such workers. Not just formal UI rules, but state unemployment agency practices negatively affect workers with volatile schedules. Often, when workers who have lost their jobs as a result of scheduling challenges seek UI, state agencies simply apply existing UI rules to these cases—regardless of their fairness or reasonableness in such cases. To better address the needs of workers with volatile job schedules who are seeking UI benefits, states may need to establish new rules, revise existing ones, or rethink how they are applying existing rules.

Three widespread state agency policies, with varying degrees of support from legislatures and courts, stand out as barriers to UI benefits for individuals losing work who have experienced substantial reductions in hours:

1. An employee is expected to explore alternatives to quitting with his or her employer, regardless of whether doing so would be futile.
2. Employees who leave their jobs because of volatile scheduling practices are seen as not having “good cause” for quitting if such schedules are deemed customary in the industry or occupation, or if the employer disclosed to the employee at the time of hiring that such scheduling practices were prevalent.
3. State agencies make contradictory rulings regarding whether a worker must endure a “trial period” of the new terms and conditions of her job (such as reduced hours or altered schedules) before quitting. Agencies may disqualify workers for leaving their jobs too quickly without trying out the new conditions; or, conversely, deny a claim because the worker is seen as having acquiesced to the new conditions by working under them for some time before quitting. Either way, benefits are denied.

Other policies that affect workers with volatile schedules include varying degrees of recognition of conflicts between work and caregiving responsibilities within UI rules. In all these cases, this paper advocates changing UI rules to increase support for workers subject to volatile scheduling practices.

Rules governing access to partial UI benefits also fail workers affected by volatile schedules. In all states, partial benefits can provide income support for workers experiencing reduced hours or individuals who accept part-time jobs while unemployed. Partial benefits are meant to mitigate the impact of sudden drops in income that occur when employees’ schedules do not provide adequate hours and they experience low earnings as a result. However, partial UI benefit rules have not been updated in decades in most states. With low maximum weekly earnings levels, and overly restrictive rules about the amount of wages disregarded in many states, lower-wage, partially unemployed workers often get little or no help under existing rules. In addition, jobless claimants may be discouraged from trying a part-time job because of the financial penalty on UI caused by even small earnings.

Based upon our analysis, we make these recommendations:

1. Legislatures should adopt federal, state, and local fair-scheduling legislation to reduce job losses due to volatile schedules.
2. States should amend their UI rules to:
   1. Require employees to seek accommodation with employers only when doing so is reasonable and not futile;
   2. Excuse quits related to volatile schedules, regardless of whether such scheduling practices are customary in an industry or occupation;
   3. Clarify rules about how long individuals are expected to “test out” changed working conditions before quitting and at what point continuing in a job indicates acceptance of changed working conditions.
3. States should update their partial UI rules to protect workers subject to volatile scheduling and encourage jobless workers to accept part-time jobs.
4. State agencies should engage in outreach efforts to increase transparency and improve public understanding of UI rules for workers experiencing volatile schedules.

UI laws, policies, and agency practices leave many workers subject to volatile scheduling practices in the lurch. A primary failing of existing rules and practices is that, while workers under traditional scheduling arrangements who experience significant changes in their working conditions may be able to leave their jobs with good cause and maintain eligibility for UI, the experience of volatility, which is different from a one-time change, is often not recognized under UI law. In short, the UI system has not caught up with the realities of today’s labor market and often fails workers with volatile schedules when they are most in need. With the changes advocated here, we can bring UI programs more into sync with the realities of workers experiencing volatile scheduling.