“We’re fighting not just for a living wage, but for employment rights and benefits that allow us the freedom to take time to care for ourselves and our families. We demand true workplace flexibility and full labor protections.” – Alvaro Bolainez, Rideshare Drivers United
Truly flexible work enables people to choose when and how to earn their living in good-paying jobs with fundamental rights and protections. Workers know this. With a vision of work that respects the need to balance priorities, plan for the future, rest, and care for others, workers are collectively demanding policies that protect their need for flexible work while protecting their rights and protections as employees. At the same time, shadowy anti-worker entities are spending millions to redefine exploitation as flexibility.
The corporate mega-lobby group Coalition for Workforce Innovation (CWI) is pushing federal legislation, the “Worker Flexibility and Choice Act,” that would deny workers across industries bedrock rights and protections in exchange for a mirage of scheduling ‘flexibility.’ Yet businesses can already offer their employees scheduling flexibility, and truly flexible work means the freedom to choose more than just work hours.
Fortunately, several bills before Congress would complement union-negotiated paid time off policies and state and local paid leave policies and would guarantee rights to more flexible scheduling while maintaining fundamental worker protections.
The “Worker Flexibility and Choice Act” Offers Neither Flexibility nor Choice
CWI’s Orwellian “Worker Flexibility and Choice Act,” would strip workers subject to so-called ‘flexibility agreements’ of federal rights to minimum wages and overtime pay guaranteed to employees. Worse yet, it would also eliminate workers’ rights to state and local paid sick and family leave, unemployment insurance, and coverage under any accident, disability, or health benefit plans.
In return, workers could reject an assignment or shift offered to them, but would not have the right to choose their schedules in any meaningful way. Workers would have, at best, the ‘freedom’ to reject an assignment, but without any power to reschedule it—that is the “flexibility” to lose work and pay.
And while the bill states that workers will not suffer retaliation for declining assignments during the term of any agreement, there’s nothing to prohibit short-term agreements as an end run around that provision.
In short, even the so-called scheduling ’flexibility’ offered in this proposed legislation is a sham.
Worse yet, the proposed legislation would apply to any worker in any industry who falls subject to such an ‘agreement,’ threatening the rights of all workers in the U.S.
CWI falsely claims that the hollowing out of employment protections is a necessary response to ‘innovation.’ The ironic truth is that CWI has launched an all-out campaign to turn back the clock on labor policy by a century—to the dark days prior to the New Deal—when workers were ‘free’ to toil around the clock and sell their labor for as little as an employer demanded.
The bill’s real aim is to give employers across industries “flexibility” to opt out of their responsibility for employee payroll taxes, social insurance contributions, and compliance with labor laws. And they would reap the benefits of this exploitive ‘flexibility’ without allowing workers any meaningful control over their schedules.
Employees—Even App-Based Employees—Can Enjoy Scheduling Flexibility
Employees can demand flexible scheduling without giving up other protections. That’s because scheduling flexibility is a business decision informed by workers’ collective power to demand it; nothing in the law prohibits it or prevents a business from providing such flexibility to an employee as it would to an independent contractor.
In fact, scheduling flexibility is compatible with employee status across industries, including more recently for nurses, exotic dancers (despite having signed agreements under the misimpression that they could keep flexibility only as independent contractors), and recreational vehicle park managers.
Research shows that businesses can switch to an employee model and continue to offer flexible app-based scheduling. A digital labor platform company offering on-demand last-mile delivery services found that, after it switched its California drivers from independent contractors to employees, “drivers were able to retain their working time flexibility” using the same platform scheduling system and policies as drivers who remained classified as independent contractors.
In addition, after the company made drivers employees, “there continued to be high variation in driver behaviors and working time, with no major change in the composition of driver groups and the continued use of full-time high hour workers, and stable and intermittent and low-hour workers.”
The switch from an independent contractor to employee model also enabled the company to better predict the labor needed to respond to fluctuating demands—an added efficiency that most helped casual drivers balance work and personal commitments.
The researchers concluded, “claims from platforms about the necessary or inevitable reduction in scheduling flexibility that would result from a shift to employment are unfounded.”
Technology Already Enables Employees to Choose Their Schedules
Many businesses have turned to app-based scheduling for their employees, further demonstrating that technology and ‘innovation’ can support flexible scheduling for employees.
Many businesses have turned to app-based scheduling for their employees, further demonstrating that technology and ‘innovation’ can support flexible scheduling for employees.
The ShiftZen app enables restaurant employees to exchange shifts or pick up extra work at the last minute. Similarly, the Shyft app claims that it “empowers employees to swap their shifts, message team members, and manage schedules, all from their mobile device.” One major clothing retailer allowed employees to use Shift Messenger to swap or pick up shifts, with employees overwhelmingly reporting that it enabled them to work schedules that fit their needs. Employees at hotels, restaurants, warehouses and manufacturing plants are also using mobile apps to choose part-time and on-demand shifts.
Workers Are Redefining, Demanding, and Winning True Flexibility at Work
CWI’s legislation is an insidious attempt to eliminate fundamental employment protections by selling a lie about what rights workers must give up for a pretense of scheduling flexibility. Fortunately, workers have been organizing to demand true flexibility, and several bills now before Congress would guarantee rights to predictable schedules while maintaining fundamental employment protections.
Fortunately, workers have been organizing to demand true flexibility, and several bills now before Congress would guarantee rights to predictable schedules while maintaining fundamental employment protections.
Paid time off policies give employees the flexibility to take time away from work without losing pay or facing termination. Millions of workers have negotiated strong versions of these policies through their union agreements, underscoring the importance of protecting and expanding organizing and collective bargaining rights through passage of the Protecting the Right to Organizing Act.
Paid family leave and paid sick leave policies at the state and local levels also enable workers to take time to care for themselves, a new child, or a loved one without monetary penalty or retaliation. Investing in high-quality universal childcare would offer parents freedom to choose whether and when to participate in the workforce.
Worker-led Fair Workweek campaigns in several states and cities have won fair scheduling laws that guarantee scheduling predictability and give workers the freedom to plan—a key aspect of workplace flexibility. Complementing these gains, several bills like the Schedules that Work Act in Congress would enable employees to have a federally-protected voice in their work schedules.
In short, it’s not CWI’s disingenuous “Worker Flexibility and Choice Act,” but worker organizing for a full slate of protections that can deliver workers true flexibility and economic security.
