Have you heard of the “Obamacare 29ers” yet? Under Obamacare’s employer mandate, companies with 50 or more “full-time” employees are required to offer health care insurance to their workers or pay a penalty if at least one of their employees purchases a plan through the healthcare marketplace with a federal subsidy. A “full time” employee is defined as those working 30 hours or more. Does this current provision encourage companies to cut work hours? The Congressional Budget Office’s noted in a recent report that there is no compelling evidence to suggest that part-time employment has increased directly because of Obamacare. However, some companies have shifted employees to part time status just below the 30 hour threshold and these workers have been called the “Obamacare 29ers.”
Traditionally part time workers have been low risk and high reward. They are a flexible workforce in terms of number of hours worked and variable scheduling that is particularly important for seasonal work and in sectors such as retail and restaurant where staffing needs change daily depending on the number of customers. Generally, they do not receive benefits, rarely qualify for overtime pay and are not considered “full time” employees under the Affordable Care Act.
Part time employees have voiced concerns about their continuously changing schedules and variable income; some are scheduled for only one day a week and are placed “on-call” for other days requiring them to call their employer to see whether to report for work that day. This makes it very difficult for part time employees, the majority of whom are women, to work enough hours to support their families, plan for child and elder care, attend school, or work another part time job to make ends meet.
Currently only Vermont and San Francisco have adopted laws giving workers the right to request flexible or predictable schedules. Last month, President Obama ordered federal agencies to give the “right to request” to two million federal workers. Labor unions, women’s rights advocates and other groups are fuelling a national “Fair Workweek Initiative” encouraging “right to request” legislation in cities across the nation. U.S. Congressional Representative George Miller (D. California) has announced plans to introduce federal “right to request” legislation this summer. These are just examples to demonstrate that the number of jurisdictions with laws giving part time employees the right to request more predictable schedules remains small but is likely to grow.
The voters in SeaTac, Washington approved a measure that bars employers from hiring additional part-time workers if any of their existing part-timers want to work more hours.
Employers should note that the National Labor Relations Act still applies so it is possible that state and local “right to request” laws or companies that are too aggressive in terms of requiring employers to negotiate with employees over scheduling requests may run the risk of NLRA preemption.
Employers should prepare accordingly and work with trusted legal and financial advisors to, among other things, weigh the benefits of the flexible part time workforce against these new legal duties. Even in jurisdictions without specific legislation, employers can review and revise accordingly their scheduling procedures to ensure they are consistently applied, do not have a disparate impact on any legally protected group and take into account the laws in many jurisdictions that protect employees from discrimination based on familial status and child-care characteristics, which can often form the basis of schedule related requests.