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American Workers Have Lost Control of Their Time. It’s Time To Take It Back.

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It wasn’t sup­posed to be like this, accord­ing to John May­nard Keynes. In 1930, the econ­o­mist pre­dict­ed that his grand­chil­dren would be work­ing 15-hour work weeks. Tech­nol­o­gy would have advanced to the point two gen­er­a­tions after his own that work­ers’ aver­age time on the job would be a frac­tion of what it once was. We would all be strug­gling to fig­ure out what to do with so much free time.

The oppo­site has turned out to be true. Instead of being freed from the tyran­ny of the clock, Amer­i­can work­ers are more shack­led to it than ever, work­ing longer hours, being sub­ject­ed to errat­ic sched­ules, fig­ur­ing out how to work more just to make ends meet, and watch­ing an increas­ing amount of con­trol over their lives slip into the boss­es’ hands.

In his new book Worked Over: How Round-the-Clock Work Is Killing the Amer­i­can Dream (Basic, Sep­tem­ber 2020), Jamie McCal­lum, a pro­fes­sor of soci­ol­o­gy at Mid­dle­bury Col­lege, exam­ines why and how U.S. work­ers are more tied to the clock than ever, the dam­age this has meant for work­ers’ well-being, and what an agen­da for reclaim that time could look like. We spoke by phone in Sep­tem­ber. This inter­view has been edit­ed for length and clarity. 

Explain the over­all sit­u­a­tion for the Amer­i­can work­er and time on the job.

There are three dimen­sions of it. One, the rise of over­all hours worked since the 1970s. Two, an increase in volatil­i­ty and the unpre­dictable nature of work­ers’ sched­ules. Three, work­ers not hav­ing enough hours to make ends meet. 

That’s a con­tra­dic­to­ry sit­u­a­tion, no? Peo­ple are work­ing too many hours, but also not enough hours. There’s a lack of con­trol of peo­ple’s over­all time both at work and when they’re not at work. Either way, peo­ple are sub­ject­ed to a tyran­ny of the clock.

That’s right. Peo­ple often ask me about this one sta­tis­tic that work time has increased sig­nif­i­cant­ly since the 70s for all wage and salary work­ers, which it has. But if you dig into that, you get a dif­fer­ent pic­ture. Most peo­ple are famil­iar with the idea that tech work­ers and lawyers and cor­po­rate lob­by­ists put in 70-hour weeks. They still work the longest out of every­one. But it’s low-wage work­ers who have increased their work time the most.

So the num­ber of hours that the high­est-paid work­ers work is con­verg­ing with the hours worked by the low­est-paid employ­ees. Is that because the low­est-paid employ­ees, who have been sub­ject to decades’ worth of wage stag­na­tion, are try­ing to make up for that stag­na­tion through work­ing more hours?

Yes. The work­ing rich today tend to pull away from the rest of the peo­ple below them wage-wise through bonus­es, high­er salaries, etc. Peo­ple at the bot­tom do it through work­ing longer hours. 

You talk in the book about this his­to­ry of dis­cus­sions of work time. It’s sim­i­lar to what the late anthro­pol­o­gist David Grae­ber talked about with tech­nol­o­gy—he argued that years ago, we all thought we were going to be liv­ing in this tech­no-utopia, some­thing like The Jet­sons, in which tech­nol­o­gy would pro­vide for many of our needs and make life bet­ter and eas­i­er. Instead, we now live in a pret­ty dystopi­an world. That’s also true of work time. 

Thinkers like John May­nard Keynes used to say that we would soon have more free time than we knew what to do with. Instead, we find our­selves work­ing longer hours than ever, and our work is always expand­ing into every nook and cran­ny of our lives. Instead of arriv­ing at a utopia, we’re in a place where work nev­er ends.

Exact­ly. Keynes thought that we would have a 15-hour work week by some­thing like 2030. And there were good rea­sons to think that. For about a hun­dred years, the num­ber of hours worked declined. The work day declined, the work week declined. But this began to shift in the 70s, when work­ers began return­ing to work­ing longer hours. But Keynes was onto some­thing. I think that he thought increased pro­duc­tion and com­pound inter­est and all the oth­er ris­ing indi­ca­tors of our econ­o­my would lead us to a leisure­ly soci­ety. He was right about the com­pound inter­est part—he was right about the prof­itabil­i­ty. But he was wrong about the time. 

Some­body was col­lect­ing all the wealth dur­ing that time and ben­e­fit­ing off of the advances of the econ­o­my and soci­ety, but it wasn’t work­ers.

Leisure actu­al­ly is expen­sive. Ben­jamin Kline Hun­ni­cutt wrote a great his­to­ry of this and argues that in the 1940s, peo­ple began desir­ing more leisure. Leisure costs more mon­ey, so they stopped desir­ing short­er hours to work longer, to make more mon­ey to pay for leisure. 

When you say they lose their time, you mean they lose con­trol of their life. They do not have con­trol over the most basic thing upon which every­thing else depends—their time.

Who­ev­er con­trols labor con­trols time. They con­trol when we have week­ends, when we raise our kids, when we eat, when we sleep, when we get up in the morn­ing, when we go to bed at night. There’s a rhythm to it that is very attached to work. When our work time is out of our con­trol, so is our oth­er time. 

To me, that is crim­i­nal. So there was a moral or eth­i­cal polemic that was run­ning through me when I was writ­ing this book. A “time squeeze” is real­ly about peo­ple being pushed around. That is a real­ly dis­mal way to live.

Not to men­tion that you can’t have things like democ­ra­cy with­out hav­ing the time to par­tic­i­pate in civic insti­tu­tions, in polit­i­cal activism, in any­thing out­side of your work.

Prac­tic­ing our free­doms and hav­ing a basic demo­c­ra­t­ic exis­tence requires hav­ing free time. If peo­ple are work­ing 50, 60 hours a week, or they’re des­per­ate­ly try­ing to scrape togeth­er a hodge­podge life, it’s hard to orga­nize. All those things are dis­rupt­ed when we have the kind of work­ing rhythm that we do.

In addi­tion to being unable to par­tic­i­pate in demo­c­ra­t­ic life, the work­place itself is the fur­thest thing from a democracy. It’s a dic­ta­tor­ship, in which your boss is king. And then when you’re home, in your time that you were sup­posed to have to do what­ev­er you want, you’re instead wor­ry­ing about work—the unde­mo­c­ra­t­ic régime of the work­place extends into your home.

Sta­tis­tics cap­ture leisure as time, but what we call leisure is typ­i­cal­ly spent recov­er­ing from work in order to return back to work. And even aside from demo­c­ra­t­ic norms, we need time for hol­i­days or enjoy­ing breaks or the great out­doors. You need space and real dis­tance to actu­al­ly pon­der and con­sid­er your life. And if all you’re doing is think­ing about the job you just came from and prepar­ing to go back to it the next day, you don’t have time to do it.

Talk about the details of this time régime of 21st-cen­tu­ry work. How is the time régime enforced? What are the mechanisms?

I became inter­est­ed in this project because of the “fair work­week” move­ment, which I think is one of the most vis­i­ble exam­ples today of work­ers orga­niz­ing for the con­trol of time. The move­ment high­lights a lot of low-wage retail, food ser­vice, health­care and trans­porta­tion work­ers whose work lives are dis­rupt­ed by peri­ods of unpre­dictable and volatile breaks. They’re unpre­dictable by design. Their sched­ules are pur­pose­ly removed from their con­trol and often giv­en to either an algo­rithm or a super­vi­sor, both of which will make the sched­ule that is obvi­ous­ly best for that par­tic­u­lar com­pa­ny, not the worker. 

I worked in retail when I was younger, and I’d be sched­uled three weeks in advance. That’s just not the case any­more. I remem­ber doing inter­views on 34th Street in New York City, a main shop­ping area, and in Burling­ton, Ver­mont. When you talk to sales clerks, they’ll say, “I got my sched­ule three days ago. But I’m being sent home ear­ly today at 3:15 PM.” They’re sent home at the exact moment they’re no longer need­ed. Those sched­ules are based upon a pre­dic­tive algo­rithm that cal­cu­lates the opti­mum amount of sales­peo­ple and sales hours on the floor based upon the weath­er, the time of year, etc. 

So your sched­ule is more like­ly to be cut. Or alter­na­tive­ly, you’re more like­ly to be held over. Work­ers become com­plete­ly exhaust­ed, not just by being over­worked, but by being over­run by the unpredictability.

Talk about the Dunkin’ Donuts work­er you profiled.

Maria Fer­nan­des worked at three dif­fer­ent Dunkin’ Donuts loca­tions in North­ern New Jer­sey. At the time, she was sup­port­ing a part­ner who also had chil­dren. One morn­ing, she got off of one shift around 6:00 AM but was not sched­uled to start her next shift until hours lat­er. She slept in her car overnight to “nap” before work. She nev­er woke up, from gas fumes. She died in her car in her Dunkin’ Donuts outfit. 

For a while, she became a sym­bol of the low-wage, over­worked Amer­i­can work­er. And for a while, there were calls from union lead­ers and activists to make leg­isla­tive changes in response—there was even a law pro­posed in her name. 

It is an incred­i­bly sad sto­ry. And there are plen­ty of peo­ple who are still work­ing those jobs and who are still sub­ject­ed to those same sched­ules who may have suf­fered sim­i­lar tragedies, but we don’t know their names.

You also write a lot about the new tech­nolo­gies that are used—not just algo­rith­mi­cal­ly defined sched­ul­ing, but all kinds of wild tech­nolo­gies used to hyper-Tay­lorize work in places like Ama­zon. You talk about a socio­met­ric badge that some MIT sci­en­tists cre­at­ed that was put around employ­ees’ necks that records all inter­per­son­al inter­ac­tions through an embed­ded micro­phone and mea­sures how often you talk to mem­bers of anoth­er gen­der. Does your voice con­vey con­fi­dence or anx­i­ety, are you wait­ing your turn to speak or con­stant­ly inter­rupt­ing oth­ers? The com­pa­ny is called “Humanyze.”

It sounds like Black Mir­ror. Humanyze actu­al­ly has stopped using the badges. I inter­viewed the guy who invent­ed those badges, he actu­al­ly seems thought­ful about what they’re doing com­pared to a lot of com­pa­nies who are just like, “look, man­agers need greater con­trol.” Oth­er soft­ware can access your web­cam and take ran­dom screen­shots of your work­space from wher­ev­er you are at ran­dom times through­out the day.

Work­ers have always hat­ed this kind of sur­veil­lance. Ever since Fred­er­ick Winslow Tay­lor walked into a fac­to­ry with a stop­watch and a slide rule in the 1890s, work­ers have hat­ed man­agers look­ing over their shoul­ders. Today we see the evo­lu­tion of that idea. It’s less through a fore­man and more through computers.

The impor­tant part to remem­ber about this stuff is not that it’s Orwellian or what­ev­er, but that it is the result of a dis­or­ga­nized work­ing class. As unions began to decline, man­agers gained more con­trol over their work­ers. As sub­con­tract­ing became a pop­u­lar way to save costs, and work­places couldn’t bar­gain over the use of sub­con­tract­ed labor, man­agers began increas­ing­ly using elec­tron­ic sur­veil­lance tech­nol­o­gy to mon­i­tor them from afar. This paved the way until today where it is a com­mon prac­tice among in-house work­ers too. Though work­ers rou­tine­ly report they don’t like it, they’ve been vir­tu­al­ly unable to resist it. It’s actu­al­ly increased dur­ing the pandemic. 

You wrote the book large­ly before the pan­dem­ic, but I can only imag­ine that just as com­pa­nies like Zoom are hav­ing a field day because we bad­ly need their tech­nol­o­gy under quar­an­tine, the tools that you’ve described, like the one where your boss can take over your web­cam and watch you while you work at home, are also being used more against workers.

Right. We’ve known a lot about this in the con­sumer realm for a long time. It’s real­ly about data col­lec­tion. This is also the main point of Shoshana Zuboff’s writ­ing about “sur­veil­lance cap­i­tal­ism”— it’s a new régime of col­lect­ing data. For a long time, com­pa­nies like Google and Face­book did not know what to do with that data. Now they do, and they can use it against you. They can use it in per­for­mance eval­u­a­tions, they can do it when it comes to wages, rais­es or bonus­es. They can dis­ci­pline you or fire you based upon your pro­duc­tiv­i­ty. But they would not be able to do it as well or eas­i­ly if work­ers had more pow­er to resist those things.

That issue of work­er pow­er is why we don’t have the fly­ing cars and 15-hour work weeks, right? Those ideas were advanced at a time when union den­si­ty was at its high­est. When work­ers don’t have that con­trol, tech­no­log­i­cal devel­op­ment con­tin­ues apace, but is wield­ed against work­ers rather than for them.

There is a clear need for us to fig­ure out ways to have tech­no­log­i­cal inno­va­tion in a way that decreas­es our over­all work and elim­i­nates the most ardu­ous jobs. That inno­va­tion can’t come at the expense of peo­ple’s liveli­hoods, it should make people’s lives bet­ter. In the 50s and 60s as work­place automa­tion arrived at indus­tri­al fac­to­ries, there’s some evi­dence that work­ers and their unions, which were much denser and stronger, were able to trans­late that automa­tion into free time or high­er wages. Today we don’t have that same ability.

Let’s talk about robots and gig work and the gen­er­al ero­sion of work in the Unit­ed States and through­out the wealthy world. Your dis­cus­sion of this in the book is one of the most nuanced that I’ve read, because on the one hand, breath­less dis­course along the lines of “the robots are going to take all our jobs” is com­mon. On the oth­er hand, you have some peo­ple who say this rhetoric is overblown—that there’s actu­al­ly lit­tle evi­dence that robo­t­i­za­tion and gig work are much more preva­lent than they always have been. This is just what cap­i­tal­ism looks like: insta­bil­i­ty, peo­ple not hav­ing con­trol of their jobs and of their lives. You take from both of those arguments.

It’s dif­fi­cult to assess it clear­ly. I agree with you that there are sort of breath­less and Pollyan­naish takes on both sides. The most recent and cel­e­brat­ed one was pres­i­den­tial can­di­date Andrew Yang: his cam­paign was all about the fear of automation. 

There’s cer­tain­ly evi­dence that robots are get­ting much cheap­er and much eas­i­er to put into work­places. I pro­filed a com­pa­ny that basi­cal­ly rents robots; if you have a prob­lem, the com­pa­ny devel­ops a robot for it, and you can rent it for how­ev­er long you want it for. When you’re done with it, they take it back. That great­ly low­ers the bar­ri­ers to entry to bring­ing automa­tion on to a par­tic­u­lar kind of assem­bly line or a par­tic­u­lar kind of pro­duc­tion process.

But I was inter­est­ed in the way we talk about robots. I uncov­ered stuff from pre­vi­ous gen­er­a­tions where peo­ple were very fear­ful of the poten­tial monot­o­ny of a life where we are just adjuncts of machines at work, or where machines do all of our work for us. Isaac Asi­mov once said we’re all going to become machine ten­ders. Today, fear of robots isn’t about bore­dom or malaise, it’s about los­ing a liveli­hood. I think that has some­thing to say about the dif­fer­ent kinds of regimes that peo­ple were work­ing under those dif­fer­ent times. 

There’s a clear his­to­ry of peo­ple embrac­ing tech­nolo­gies that lim­it ardu­ous work. I think peo­ple would wel­come that kind of tech­nol­o­gy today. The prob­lem is that we don’t have the con­trol to do it. Instead, we get a lot of fear and scape­goat­ing. When we don’t have con­trol over tech­nol­o­gy, we either blame tech­nol­o­gy or blame oth­er peo­ple, rather than the peo­ple who are actu­al­ly in con­trol of this technology.

Work­ers and unions need to think care­ful­ly about hav­ing these kinds of issues in their bar­gain­ing con­tracts. There’s actu­al­ly a recent increase of peo­ple talk­ing about app use in con­tract nego­ti­a­tions. Ways that work­ers can exer­cise some degree of con­trol or lever­age over how tech­nol­o­gy is used are crucial.

What about gig work? You pro­file gig work­ers and talk about what their work lives and non-work lives are like. But there’s a sim­i­lar way that gig work is talked about: that we’re all going to be gig work­ers soon. How much truth is there to that assertion?

I’m that per­son who strikes up an oafish con­ver­sa­tion with the Lyft dri­ver. You get real­ly dif­fer­ent reflec­tions: some peo­ple real­ly do see their job as a side hus­tle and enjoy some of the free­doms that come with it. And some peo­ple see those free­doms very differently. 

I pro­file peo­ple who dri­ve for Uber Eats. They can work when­ev­er they want, right? Wrong. They can’t work when peo­ple don’t want food. And they have to work when peo­ple want food that costs the most amount of mon­ey and they’ll get the largest amount of tips. So they’re actu­al­ly seri­ous­ly con­strained. I inter­viewed a woman who spent time dri­ving around each night from 9:00 PM to 1:00 AM, often with her six-year-old daugh­ter in the back­seat, deliv­er­ing meals. She didn’t feel she was free to work whenever. 

App work­ers are work­ers and should be rec­og­nized as such. They should have rights and lib­er­ties and ben­e­fits that come with being a work­er. The inde­pen­dent con­trac­tor sta­tus has been such a lie, and a way to exert so much more con­trol over that workforce. 

Which is some­thing under dis­cus­sion right now, par­tic­u­lar­ly in Cal­i­for­nia.

I have a strange sense of opti­mism that they will win. There’s a lot of orga­niz­ing going on in the gig econ­o­my by dri­vers and deliv­ery work­ers. Even since the pan­dem­ic start­ed, there were maybe half a dozen work stop­pages at a num­ber of impor­tant gig employ­ers. That activ­i­ty will lead somewhere. 

Let’s talk about the ide­o­log­i­cal aspects of this time cri­sis. That was one of the most inter­est­ing parts of your book: you talk about what the ide­o­log­i­cal jus­ti­fi­ca­tions for the time régime—the “do what you love” ethos, the idea that you need to not just work a job to pay the bills but find a job that you find ful­fill­ing on a deep per­son­al and exis­ten­tial lev­el. This is just an ide­o­log­i­cal jus­ti­fi­ca­tion for shit­ty work at longer hours. 

It’s one thing to under­stand how and why low-wage work­ers end up hav­ing to put in more time. But rel­a­tive­ly well-off people’s work-time grow­ing is some­thing dif­fer­ent. Cul­ture is clear­ly part of this, but there’s also a mate­r­i­al basis. This is one of the things that peo­ple don’t appre­ci­ate enough about the “mean­ing­ful work” dis­course. It’s easy to roll your eyes at the cyn­i­cal recu­per­a­tion by man­agers and gurus about doing what you love, blah. But we actu­al­ly all want mean­ing­ful jobs. We deserve them. If we have to work to sur­vive, at the very least, we should be able to like what we’re doing for eight-plus hours a day. 

I’ve always found it strange that some peo­ple are will­ing to write off the idea of mean­ing­ful work alto­geth­er as if it’s a cap­i­tal­ist plot. The prob­lem is not that peo­ple are encour­aged to find mean­ing­ful work. You write in the book that that is a right that we all should have. The prob­lem is when that con­cept is used to paper over work­ing con­di­tions and pay that are get­ting worse and worse.

It’s no sur­prise that the “do what you love ethos” explod­ed at the very same time that con­di­tions for work­ers began to stag­nate. It’s not some elite con­spir­a­cy—there was a gen­uine desire to leave monot­o­nous, tire­some, gru­el­ing fac­to­ry labor behind. And there was just as much a real desire to burn down your cubi­cle like they did in Office Space. But those desires were eas­i­ly recu­per­at­ed and re-enlist­ed in a cam­paign to say, “if work is mean­ing­ful and work is ful­fill­ing and work is good for my soul, then more work must be better.”

The Nation­al Labor Rela­tions Board had to rule against a pro­pos­al by T-Mobile that work­ers had to main­tain a pos­i­tive work envi­ron­ment. The NLRB ruled that no, you can’t do that. You can’t force peo­ple to like their job. When I talked to dancers at the old Lusty Lady strip club in San Fran­cis­co, they explained that man­age­ment includ­ed a “fun clause” in their con­tract that insist­ed their work was fun. The dancers said, “maybe it is, maybe it’s not, but that’s not your deci­sion. That’s up to us.” 

Speak­ing of San Fran­cis­co, you also were in the Bay Area to talk to tech work­ers. You have a fun­ny scene where you get on a Google bus and are kicked off for ask­ing tech work­ers about their jobs. Sep­a­rate­ly, you go to this swanky Sil­i­con Val­ley bar where… I don’t know, deals get made, I guess. And a guy who works at Google tells you, “Every­where you look, you hear peo­ple talk­ing about ‘mean­ing.’ They aren’t philoso­phers. … They sell ban­ner ads. What do they know about meaning?” 

There have been numer­ous books writ­ten on the mar­riage of the coun­ter­cul­ture and the com­put­er age. It’s such an inter­est­ing his­tor­i­cal switch. Peo­ple were inter­est­ed in a “let’s destroy the office, let’s have ful­fill­ing work­days, let’s have free­dom to exper­i­ment with new kinds of employ­ment rela­tion­ships.” And now they’re lead­ers of a move­ment to keep peo­ple at work longer and longer through a cou­ple of perks.

You argue in the end of the book for a time agen­da that work­ers could unite around, around this shared expe­ri­ence of not hav­ing con­trol of their work lives. What should the 21st-cen­tu­ry time agen­da look like? What should it include? What should be on the ban­ners of the move­ments in the street demand­ing their time back?

The old ban­ners used to say basi­cal­ly “few­er hours for more mon­ey.” For a long time, the labor move­ment was suc­cess­ful at win­ning exact­ly that. Dur­ing a cri­sis, espe­cial­ly like the one right now, it often seems tone deaf to talk about few­er hours when peo­ple are unem­ployed, when peo­ple aren’t get­ting CARES Act fund­ing and unem­ploy­ment insur­ance is run­ning out. But there’s a his­tor­i­cal prece­dent here. Dur­ing the Great Depres­sion, the gov­ern­ment used work-shar­ing ben­e­fits. They spread the work around to avoid lay­ing peo­ple off, reduc­ing hours and using gov­ern­ment pro­grams to sub­si­dize you at your pre­vi­ous wage. We should be doing more of that.

Protests around health­care, or to expand the purview of care in gen­er­al in an econ­o­my, are sig­nif­i­cant, too. We could cut and paste pro­grams from some peer nations in West­ern Europe. We work about 400 hours per year more than the Ger­mans, 250 hours more than French work­ers. They’re not starv­ing—they’re doing fine. State pro­vi­sions are impor­tant not only because they’re good for peo­ple’s health­care, but because it allows peo­ple to step back from work. But half of Amer­i­cans get their health insur­ance through a job, and min­i­mum-hour require­ments and eli­gi­bil­i­ty statutes require that peo­ple con­tin­ue work­ing, often longer than they want, just to main­tain their health­care. It’s trag­ic and it’s criminal. 

When I inter­viewed work­ers from Ohio from a laid-off auto plant out­side Day­ton, Ohio, they said, “Health­care should be tak­en off the union bar­gain­ing agen­da. It’s a dri­ver of lock­outs, it’s a dri­ver of dis­rup­tions, and most impor­tant­ly, we spend so much time argu­ing about health­care that we can’t talk about high­er wages and hours.” So uni­ver­sal health­care, Medicare for All, is an impor­tant goal of any­one think­ing about short­er hours.

You also talk about the upsurge in the labor move­ment around teachers. 

We think of teach­ers hav­ing the sum­mers off, right? I am the son of a teacher myself, and remem­ber our kitchen table piled high with books for the entire sum­mer, because that’s when you plan lessons and do a lot of oth­er impor­tant work ahead of the school year. Recent­ly, we’ve seen teach­ers get­ting not only sum­mer jobs to sup­ple­ment their income, but night jobs after school. 

But teach­ers have tak­en so much lead­er­ship in reori­ent­ing their work­places through strikes, and strikes that do more than just talk about teach­ers’ work issues. They talk about race and racism, immi­gra­tion, hous­ing, access to food. There’s no rea­son why work­ers can’t also talk about reduc­tion of work­ing hours. 

When it comes to con­tract nego­ti­a­tions, this is what peo­ple call “bar­gain­ing for the com­mon good.” Free time should be a pub­lic good. And we should use our moments of nego­ti­a­tions with employ­ers to think about win­ning soci­ety-wide agree­ments to decrease work time.

Let’s imag­ine this pan­dem­ic is over. What’s num­ber one on the “Jamie McCal­lum Agen­da for Free Time?” 

Oh, wow. [Long pause] I’m stalling just think­ing about it…

Our work-time régime has made you unable to even con­sid­er this ques­tion because it feels so far out­side of the realm of possibility.

It real­ly does. I’ll say two things. My the­sis advi­sor in grad­u­ate school was Stan­ley Aronowitz, one of the great labor schol­ars of the last half cen­tu­ry. I wrote him in June and said, “I’d like to meet with you.” He wrote back, “there are three rea­sons to become a pro­fes­sor: June, July, and August. Come to me in Sep­tem­ber.” I was like, man, I want that guy’s job and the free­dom that comes with it. One of the most reward­ing things about hav­ing the free­dom to write this book was the free­dom I had to go around the coun­try and meet peo­ple, talk to work­ers and hear what they’re deal­ing with. I want to be able to do more of that.

The oth­er thing is, any­one right now in Amer­i­ca with a small child is just going absolute­ly insane dur­ing this pan­dem­ic. So I want more schools, day­care camps, play­grounds, what­ev­er, to be open 24–7. I would like that to change not only for my son’s ben­e­fit, but just for the gen­er­al men­tal and emo­tion­al san­i­ty of the society. 

This blog originally appeared at In These Times on September 23, 2020. Reprinted with permission.

About the Author: Micah Uetricht is the deputy edi­tor of Jacobin mag­a­zine and host of its pod­cast The Vast Major­i­ty. He is a con­tribut­ing edi­tor and for­mer asso­ciate edi­tor at In These Times. He is the author of Strike for Amer­i­ca: Chica­go Teach­ers Against Aus­ter­i­ty (Ver­so 2014), coau­thor of Big­ger Than Bernie: How We Go From the Sanders Cam­paign to Demo­c­ra­t­ic Social­ism (Ver­so 2020), and is cur­rent­ly at work on a book on New Left­ists who “indus­tri­al­ized.” He pre­vi­ous­ly worked as a labor orga­niz­er. Fol­low him on Twit­ter at @micahuetricht.


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California Supreme Court Set To Address Workers’ Meal And Rest Break Rights

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W-F BlogThe California Supreme Court is expected to render a decision in the Brinker v. Superior Court case later this year that will answer critical legal questions about the meal and rest break rights of hourly workers in California.  At issue in the case is when and under what circumstances workers are entitled under California law to rest and meal breaks.

Though the case was originally filed as a class action, and the appeal involved the trial court’s order granting class certification to a group of 5,500 restaurant workers, the Supreme Court’s decision will necessarily address questions that will have an impact on individual meal and rest break cases as well.  Commentators from across the political spectrum agree Brinker is one of the most important labor cases pending before the California Supreme Court today.

The case is important to workers because the Court of Appeal’s decision severely limited the rights of workers to obtain damages for missed meal and rest breaks.  The Court’s conclusions of law were broad-ranging and quite friendly to employers.  It held:

(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

These conclusions, if adopted as state law by the Supreme Court, would effectively deny workers the right to use class actions to recover wages for missed meal and rest breaks in California.  Further, the adoption of these conclusions by California’s highest court would make it harder than ever before for individual workers to obtain relief for missed meal and rest breaks.

The restaurant workers have asked the Supreme Court to decide a number of key issues of law:

•    Does a California employer need to relieve employees of all duties so they can take meal and rest breaks or simply make them “available”?
•    Can the employer simply make meal and rest breaks available to their employees at any time during a shift, or must the rest and meal break be provided within a certain number of hours of beginning a work shift?
•    When and how frequently must an employer provide meal and rest breaks to its employees?
•    In wage and hour class action cases, can workers rely on statistical data to show a class-wide pattern of meal and rest break violations or are the factual issues always too individualized for class treatment?

The answers to these questions are of great interest to labor groups and business advocates alike, and battle lines were quickly drawn. A mere three days after the Court of Appeal issued its decision in Brinker, the California Labor Commissioner, under Republican Governor Arnold Schwarzenegger, issued a memorandum entitled “Binding Court Ruling on Meal and Rest Period Requirements” instructing all California Division of Labor Standards Enforcement (“DLSE”) employees to adopt the perspective laid out in the Brinker appellate decision.

The Labor Commissioner virtually ignored other California appellate decisions more favorable to workers’ rights, and instead relied on federal court decisions interpreting California’s meal and rest break laws.  In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 94, for example, California’s Third District Court of Appeal had decided that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty [for meal breaks].”

The Third District’s decision in Cicairos was directly supported by a prior interpretation of the law issued during Governor Gray Davis’s administration by the DLSE.

Almost immediately after the Labor Commissioner issued its binding memorandum, the California Labor Federation responded with biting criticism of Labor Commissioner Angela Bradstreet’s directive.  “The Federation is deeply concerned that your hasty publication of this unbalanced and flawed analysis will undermine California workers’ rights to meal and rest breaks.”

The Labor Commissioner has since withdrawn its binding memorandum, replacing it with one that still plainly sides with the Court of Appeal’s restrictive reading of workers’ meal and rest break rights.  The Schwarzenegger administration is clearly hopeful the Supreme Court will uphold the severe restrictions set out by the appellate court.

A decision in Brinker will have an immediate impact on pending lawsuits, particularly meal and rest break class actions.  Whether the Supreme Court ultimately backs the employer-friendly logic of the decision under review or adopts the worker protections set out in Cicairos, attorneys representing both employees and employers undoubtedly will have clearer guidance on the law.

Finally, many employee rights advocates are certain, or at least very hopeful, that the California Supreme Court’s decision will not result in a substantial impairment of an individual employee’s right to meal and rest breaks.  The larger and more immediate concern is that Brinker could seriously impair the ability of workers to sue their employer collectively for failing to provide appropriate meal and rest breaks.  If the Supreme Court makes it more difficult to sue on a class-wide basis for meal and rest break violations, most violations will go unchallenged in court.  Labor advocates are counting on the Supreme Court to render a decision that protects the rights of California workers to use the class action process to vindicate these important wage and hour rights.

About the Author: Patrick R. Kitchinis the founder of Kitchin Legal APC, a San Francisco, California employment law firm.   He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999.  According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.


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