Imagine the following scenario. You wake up at 3:30 a.m. to get your kids ready for childcare before reporting for your shift at a major retail chain. You take a one-hour bus ride to work, but your manager suddenly calls to cancel your shift.
Now, you’ve lost the income you were counting on. Plus, you’re still on the hook for childcare costs that you no longer need. A couple of days later, you’re called in to work unexpectedly, and must scramble to find childcare at the last minute. If you can’t go to work, you might lose access to future shifts or maybe even your job.
This picture of erratic scheduling and the financial destabilization that comes with it is quite common for over 350,000 hourly shift workers in Connecticut. But that’s not all. For many workers in low-wage jobs, the deck continues to get stacked against them.
Later that week, you notice that your paycheck —once again— shows you worked less hours than you actually did. Your employer says the matter will be investigated, but it never gets resolved. This example of wage theft is not uncommon among businesses —particularly large, profitable corporations that pay poverty wages.
Now, you’ve lost enough wages that you decide it’s time to do something about it — only to discover that you unknowingly waived your right to a judge and jury when you were hired. The only recourse you have to bring forward a claim is through an employer-controlled arbitration hearing. This employer practice is known as forced arbitration and statistically affects most non-union, private sector workers making $13 an hour or less —a group of workers who largely don’t have the luxury to reject a job because they may someday have a legal dispute that they want to take to court.
Far too many companies in Connecticut force workers into these kinds of circumstances, and during recessions, high rates of unemployment dramatically increase the power imbalance between employers and workers, leading to higher rates of wage theft and other workplace abuses.
In recent years, many employers that pay low wages have adopted “just-in-time scheduling” practices, where they publish work schedules just days in advance and change schedules last-minute to calibrate staffing with customer demand. These practices are pervasive in Connecticut. One survey of hourly retail and food service workers in our state found that 66% of workers are required to keep their schedules open in case they are needed to work. Over 250,000 of Connecticut’s hourly workers are parents of children under 18 years old, and almost three-quarters of parents working in Connecticut’s service sector report that their unstable hours make parenting harder.
For years, wage theft has also been a growing problem in Connecticut, particularly among workers in underpaid jobs, Black workers, and Latinx workers. Some researchers estimate that 40% of workers in low-paid jobs could be subject to minimum wage violations during this recession. This is especially true in jobs in healthcare, retail, and food service —sectors in which Black, Latinx, and other workers of color are overrepresented and where workers already experience high rates of violations by employers.
On top of this, employers are racing to impose forced arbitration requirements on their workers, including in some cases as a condition to return to work after a pandemic-induced furlough. Forced arbitrations are generally conducted in secret by private arbitrators who heavily favor employers—because they depend on employers for repeat business. There is virtually no right to appeal the result.
Making matters worse, class-action waivers included in these requirements prevent workers from banding together with their colleagues to challenge employer lawbreaking, whether in court or in arbitration. More than half of non-union private sector employees face these restrictions, and the share is even higher among low-income, women, and Black workers.
Faced with the reality of proceeding alone against their employer in a stacked forum, 98% of workers whose claims are subject to forced arbitration simply abandon their claims. In 2019, over $97 million in wages were stolen from Connecticut workers subject to forced arbitration.
Work should provide stability and dignity —and all of us should be able to speak up in an open forum when our employer violates our rights. If we are serious about confronting racial inequality and giving all Connecticut children, working people, and families a chance to thrive, our representatives in the state house must enact two core legislative protections for hourly service workers: A fair workweek bill that gives workers the stability they need to live their lives, and legislation that ensures workers can fight for their rights before judges and juries, rather than in secret, forced arbitration.
Recently the legislature’s Labor and Public Employees Committee passed two bills seeking to address these issues. S.B.668, AAC a Fair Work Week Schedule, would give retail, food service and hospitality workers greater control over their work schedules and a better chance at achieving financial stability. H.B. 6475, AAC Forced Arbitration Agreements, would empower workers and representative organizations to stand in the shoes of the state and seek civil penalties for wage theft, as well as for other violations of the state’s employment laws. H.B. 6475 would ensure employers can’t simply suppress their workers’ claims by imposing forced arbitration requirements. This innovative enforcement model has been a huge success in California, generating $88 million a year in revenue for the state.
Connecticut has been on the forefront of efforts to update workplace protections for today’s economy. It is time that our thriving service economy provides the stability and dignity working people need to live and thrive throughout the state.
Hugh Baran is Senior Staff Attorney and Skadden Fellow for the National Employment Law Project. Carlos Moreno is State Director of the CT Working Families Organization.