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It’s a balancing act protecting workers’ fundamental rights without creating unfair burdens on the vast majority of businesses.
It’s true. While the rest of the nation has been working hard to erode worker protections during an era of historic corporate profits, California has taken a more balanced approach.
Forty years ago, a vast majority of middle-class workers and nearly every member of the working class earned overtime pay. Today, that’s just not the case.
Even California’s overtime protections apply primarily to hourly employees like retail clerks or restaurant and fast-food workers. These workers generally have set schedules (although their schedules are often set just hours before they have to be at work) during which they’re responsible for duties, rather than projects and responsibilities demanding more unpredictable hours.
California has established different classifications for those employees who consistently need to work irregular or longer hours. Exempt employees are permitted exactly the sort of flexible scheduling discussed in Voice of San Diego’s story, specifically because it makes sense for the sort of work they’re doing. Today, most businesses in California that employ middle-class workers have figured out how to classify them as exempt.
There’s nothing preventing hourly employees from staying late if a crisis comes up at work; they just have to be paid for performing extra, unscheduled work. In fact, the law goes further: An employer can even require an employee to work scheduled overtime, and in most cases can discipline or even fire an employee who refuses to do so. So there’s nothing in the law preventing flexible scheduling – it all depends on an employer’s willingness to pay for what they need.
That’s a simple premise California has kept with: A worker should be paid more for doing more.
Trying to balance overtime with “comp time” ultimately just shortchanges the worker. For example, if you work 48 hours in a week as a non-exempt employee, you’ve earned the equivalent of 12 hours of overtime pay. Offering you the following Monday off as comp time is only eight hours of pay. That sort of flexibility is great for your employer, who just saved money out of your pocket, but that doesn’t mean it’s a good policy.
When employers talk about the flexibility of employees working unpaid overtime or on unpredictable schedules, they’re often really talking about allowing employees to negotiate away their rights in the first place.
That’s a slippery slope. Establishing a standard in which workers can give away the rights afforded them under the law can quickly turn into an expectation that potential employees give away such rights as a prerequisite to hiring.
At that point, our basic rights at work aren’t rights at all anymore – they’re perks. That sets us back 100 years or more.
To those of us who have worked for years to re-establish balance in the workplace, there are still a lot of areas where California and every state need improvement. This is especially true in sectors where large, wealthy corporations utilize inexpensive workers who have neither individual nor collective bargaining power.
This is why I worked to pass earned sick days in California. In July, 6.5 million private sector workers, who previously could be fired for taking a sick day – even if they worked in professions that interacted with the public – will be able to access at least three a year. Twenty-one of the 22 wealthiest nations in the world offer paid sick time to their workers. The United States is the only country that does not. Where did we lose our way?
There’s more: Wage theft, money that’s flat out stolen from employees by their employers, is estimated to amount to $390 million a year in California. And that’s before examining what workers are getting for their efforts. While productivity has spiked over recent years and profits have recovered post-recession, wages have not. Adjusting for inflation, California’s low-wage workers in 2013 were making 12.2 percent less than in 1979. The story is different for high-wage workers: They’re making 17.4 percent more than in ‘79.
Workers in the service industry in California aren’t even given the right to know their weekly schedule in advance. In other words, when they want to schedule a doctor’s appointment or a parent-teacher conference, they never know if they’ll have the needed time off.
Finally, workers can be forced to work on holidays. In the retail and restaurant sector, they often are. Unless they have a union contract, they likely don’t even get extra holiday pay for missing Thanksgiving or Christmas with their families.
Against this backdrop, we have a responsibility to be realistic about the situations faced by many of these workers. It becomes too easy for employers to impose unpredictable hours, demands of unpaid overtime or work during meal breaks, or shifts that run late into the night before starting again before dawn.
It’s a balancing act for all of us to protect these rights without creating unfair burdens on the vast majority of businesses that function 100 percent in compliance with the law.
That means constant review of existing laws, but it doesn’t mean sacrificing basic rights in the name of expediency. Responsible policy demands both.
Lorena Gonzalez represents the 80th district in the California Assembly. Gonzalez’s commentary has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.