Elissa Silverman Credit: Darrow Montgomery

Labor advocates suffered a setback in September when support for a workplace scheduling bill that the retail and restaurant industry opposed fizzled in the eleventh hour.

The Hours & Scheduling Stability Act, which then-Councilmember Vincent Orange introduced last December, would require restaurant and retail chains with 40 or more stores nationwide to inform employees of their schedules two weeks in advance. The bill arrived as the D.C. Council was enacting a minimum wage increase and wrestling with a paid family leave initiative.

Big retailers, national trade associations, and prominent local restaurant owners decried it as a job killer that would reduce employer flexibility and drive businesses out of D.C. Proponents hailed it as a matter of fairness, equity, and balance for hourly workers. Complicating matters, Orange resigned to become CEO of the D.C. Chamber of Commerce while the bill was pending, leaving behind an orphan some say was mistreated.

According to advocates for workers whose livelihoods would be affected, the bill also fell prey to a misleading campaign that brought local voices—and lobbying heft—to a contentious national issue. “We expect our Council members to represent the people who vote them into office,” says Ari Schwartz, lead organizer at DC Jobs With Justice. “But in this case, the Council sided with billion-dollar corporations rather than listening to cashiers and sales clerks they see every day.”

But it looks like that campaign is unraveling, as one-time critics of the bill reassess positions that were influenced by a deceitful campaign. “I think we can do better in the way the bill is presented,” says Andy Shallal, owner of Busboys and Poets who now believes he and other local business owners were misled as to how the bill would affect them. “It wouldn’t be the first time small businesses were used as fodder for large business interests, and that’s a shame,” he says.   

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Orange introduced the bill in 2015 along with co-sponsors Brianne Nadeau, Mary Cheh, and Elissa Silverman. Brandon Todd, David Grosso, Charles Allen, and LaRuby May eventually joined as co-sponsors. After some stops and starts—and after Orange was defeated by newcomer Robert White, who was tapped to serve early when Orange resigned—the bill came to the Council floor on Sept. 20 with its support eroded. Co-sponsors Grosso, Todd, and Allen voted with six other members to table the bill, meaning it would likely expire at the end of the year. (White, elected after the bill was introduced, pledged support during his campaign but voted to table it as well.) 

Cheh says the legislation is rooted in basic fairness to retail and service industry workers and is a “matter of decency.” She describes industry opposition as generic and overly reactive to the number of pro-labor bills before the Council this year. “I think the feeling was that maybe we shouldn’t do this all at once,” she says. Silverman says it is less complicated than opponents make it out to be. “Honestly, I think it got twisted, perverted, and mischaracterized,” she says. On Nov. 3, she will hold a committee roundtable to help “reset the conversation.” 

Major chains such as Target, CVS and Costco, backed by the Retail Industry Leaders Association and the National Retail Federation, have argued that employers need flexibility during unforeseen weather, and that “restrictive scheduling” could result in labor costs that penalize companies. Auto Zone’s CEO has invoked similar language, warning that a “one-size-fits-all” approach would drive a wedge between workers and employers. 

Such claims are due for re-examination, Silverman says, hinting that credible research will show the positive effects of allowing hourly workers the same opportunities as salaried ones to balance life demands. “Costco, CVS, Target, they already have provisions for some of this stuff,” she says. “These are businesses that have to comply with laws in all the states. They have centralized systems that enable them to do it.” 

The key to Thursday’s hearing, Silverman says, is to focus on the bill’s intent, not what the retail industry says it will do—particularly with regard to local small businesses. 

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In January, a group called the DC Jobs and Growth Partnership emerged as “a joint effort” among District businesses “that are concerned about new policies taking the city in the wrong direction,” according to its website. Through press releases, op-eds, paid social media ads, and boilerplate emails, the group warned that “half of the businesses targeted by the [bill] would cut jobs if the legislation is enacted,” and that part-time job seekers would suffer. 

Shallal, originally associated with that “joint effort,” is backing away and says he has never even heard of DC Jobs and Growth Partnership. “Why is this important to local retailers and small businesses?” he asks. “I think a lot of claims were thrown out there that were unfairly characterized.” Kamal Ali, co-owner of the Ben’s Chili Bowl chain, opposed the bill in an op-ed that appears on the partnership’s website. He remains concerned that the Council is moving too fast on “business-unfriendly legislation” that could trickle down to small businesses such as his, but he too says he has never heard of the DC Jobs and Growth Partnership.

Significantly, the bill does not apply to Ben’s Chili Bowl or Busboys and Poets. But then, DC Jobs and Growth Partnership is neither a registered business entity nor a trade association. According to Steven Jumper, its press contact and a former D.C. Chamber of Commerce staffer, the partnership consists of “groups that came together in a coalition against the bill,” including the Retail Industry Leaders Association and members such as Target, Auto Zone, Buffalo Wild Wings, and Wegman’s, the latter of which has no stores in D.C. Jumper also has written op-eds against the bill for Washington Business Journal and Washington Informer.  

Democracy Data & Communications created the DC Jobs and Growth Partnership, according to DDC spokesman Kevin Lawlor, who describes Jumper as “someone we work with.” DDC’s job, Lawlor says, was to create a coalition of local businesses “to push back” against the bill. But he declined to provide a list of members, and the the DC Jobs and Growth Partnership appears dormant. Brian Dodge, a spokesman for the Retail Industry Leaders Association, which hired DDC, says DDC now runs that coalition. “We continue to support the Partnership because it has helped to make local business owners aware of the proposal and to express their concerns about it in a productive way,” Dodge writes in an email.

DDC is not a lobbying firm, Lawlor says, and neither is the DC Jobs and Growth Partnership. But prominent lobbyist Warner H. Session represents the partnership in city hall “to connect Council members with the members of the partnership to express their concerns about the bill,” Lawlor says. 

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Lisa Graves,  executive director of the Center for Media and Democracy, a national watchdog group that investigates the undue influence of corporations on public policy, says the opposition to the D.C. scheduling bill has all the signs of an “AstroTurf campaign” designed to create the illusion of grassroots support. “In many ways, AstroTurfing is the modern description of what used to be known as the ‘third-party technique’ employed by Big Tobacco,” says Graves, a former deputy assistant attorney general at the U.S. Department of Justice. “It’s people who have happy-sounding names like ‘Businesses For This,’ or ‘Americans For That,’ who in fact are funded by industry. They are front groups, intended to deceive people.”

Lawlor disagrees. “Quite frankly, I don’t understand the criticism,” he says. “The people who testified against this bill and who created ads are real live business people.” 

If agreeing on what is or is not an AstroTurf campaign is elusive, then evaluating its effectiveness in influencing elected officials is even more so. Labor advocates say they listen for buzzwords from politicians that echo what appears in op-eds, petitions, and press releases from groups such as DC Jobs and Growth Partnership. Or references to the numbers of signatures on petitions that arrive in Council offices from obscure new associations or partnerships. Or a tally of automated emails received via websites such as Keep D.C. Open.

Silverman says such tactics are deceptive. Yet three of the five members of her subcommittee—Todd, Allen and White—voted to table the bill. Allen tells City Paper he thinks the intent of the bill is a good one, and that he wants to create as much notice of schedule changes as possible. But he says his revisions to address the effect of Metro delays and sporting event disruptions didn’t make it into the final bill, so he voted to table it. “I’m very open to it, but it’s poorly written and it needs work,” he says.

White also has concerns about the bill but says he’s ready to “find a solution that will provide our employees with predictable schedules and a pathway to full-time work.” At the same time, he says he recognizes the importance of scheduling stability for workers that does not lead to the shuttering good businesses. “We can’t forgo the hard work to get this right,” he writes in an email.

Councilmember Brandon Todd, who also voted to table the legislation, says he agrees with the bill’s intent but felt it had too many flaws. “For example, the bill in its current form does not take into consideration factors such as emergency leave, the desire for additional hours, or the worker’s ability to make life decisions without penalties,” his spokesman says in a statement. “It also does not allow our businesses to make adjustments to their operating structure without fear of penalties or repercussions. … Councilmember Todd believes we must take a step back and ensure that DC businesses and workers are getting treated fairly.”

David Grosso, another member who retreated from the bill, did not respond to written questions from City Paper

Silverman, the bill’s heir apparent, says she looks forward to grappling with the business community. But she says that it has an outsize voice. “I want to give workers a bigger voice in city hall on the policies that affect them,” she says. “It’s time to address their issues. We shouldn’t just be a city for rich people.” 

Asked if she has ever heard of DC Jobs and Growth Partnership, Democracy Data & Communications, or Keep D.C. Open, she says, “Nope. I have no idea who they are. They should introduce themselves to me.”