Would you accept a job if you weren’t certain what your hours would be? What if you needed to be paid, but were told not to come to work? Forever 21 is being sued for scheduling their minimum wage retail employees for on-call shifts.
However, Forever 21 is not alone. Gap, Old Navy, Victoria’s Secret, Banana Republic, Pac Sun, and Tilly’s have all been sued for the same thing. What’s more, the law firm which brought several of these lawsuits has stated that there are several more to come.
What Is an On-Call Shift?
The concept of being on-call is one that many people are already familiar with—although usually in the context of a doctor or surgeon who can be called to see a patient at any time.
On-call shifts for retail employees are similar in practice, if not necessity. Essentially, a retail employee assigned to an on-call shift must call their employer an hour or so before their on-call shift begins and their employer tells them whether or not they need to come in and work.
These sort of shifts cause serious issues for employees as they require them to block out sections of their day that they may or may not get paid for. Beyond the obvious inconvenience, these on-call shifts require unneeded or last minute child care, make it impossible for a student employee to schedule classes, and prevent employees from accepting work at a second job as they can never know whether they’ll be required to work an on-call shift.
There is federal law requiring standby pay where an employee is required to remain on or near an employer’s premises and cannot use that time standing by for their own purposes. For instance, a firefighter playing checkers at the firehouse while waiting for an alarm would receive standby pay. Typically, a case involving standby pay would require a showing of, among other things, how close the employer required the employee to stay to their place of work. On-call shifts generally have no geographic requirements whatsoever, so standby time laws don’t apply to them.
New York has laws requiring that any employee scheduled to report for work on a day must be allowed to work a minimum of four hours or the number of hours in a regularly scheduled shift—whichever is less. California has law requiring “reporting time pay” which requires any employee given an on-call shift that they don’t work to be paid half of a normal day’s wages—but not more than four hours or less than two.
Other states with laws dealing with on-call shifts include: Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington, DC. Often, case law has held that a requirement to report requires a requirement to physically show up at work. However, California has recently sent a lawsuit on that very issue up to the 9th Circuit Court, which will likely make a ruling on the issue very soon.
As it stands, the only place with a law outright banning the practice of “just-in-time” on-call scheduling is San Francisco—requiring employers to give employees schedules with two weeks’ notice. However, California, New York, Connecticut, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota, Oregon, and D.C. all have pending legislation on the issue—albeit with each state having different standards and approaches.
Even if these pass—and the D.C. legislation seems on the cusp—many states will still have no law whatsoever to stop companies from requiring their employees to stress over whether they’ll actually be working on any given day they’re scheduled. However, there are many who are working to end the practice.
States Taking Action
In 2015, New York Attorney General Eric Schneiderman sent out a series of letters requesting information about on-call shifts from businesses including Abercrombie & Fitch, J. Crew, Gap, Urban Outfitters, Pier 1 Imports, and Bath & Body Works. All the businesses who were sent a letter either agreed to stop using the on-call shifts or denied ever using them in the first place
Just a few months ago, Mr. Schneiderman sent another set of letters, this time to Aeropostale, American Eagle Outfitters, Coach, David’s Tea, Forever 21, PacSun, and Vans. What’s more, the New York Attorney General’s letters where accompanied by letters from the attorney generals of eight other states and Washington D.C—all seeking an end to on-call shift scheduling. These other attorney generals have sent letters to businesses such as Payless and Walt Disney Co.
Business Taking Notice
This concerted effort by the attorney generals of so many states has sent a message to businesses. There are people interested in prosecuting unfair scheduling and people who will make legislation stopping on-call shifts a priority. Legislation explicitly protecting against such scheduling is close to becoming a reality in several states. In response to the letters and added pressure, many companies such as Urban Outfitters and Victoria’s Secret have agreed to stop using on-call shifts nationwide. This agreement also extends to all of these companies’ subsidiaries.
Many critics of the rules have pointed to the two weeks scheduling notice requirement in San Francisco’s laws as overly onerous. However, these critics speak of the law as if it had no leeway whatsoever. The law only applies to retail chains with at least 40 stores worldwide and 20 or more employees—it doesn’t target small restaurants with a few employees that may need more wiggle room in their scheduling. It requires one week notice for any changes to schedule, but has a slew of exceptions including unexpected issues, shift trading, or employees calling in sick and needing to be replaced.
On-call shift scheduling is not a necessary business practice. There are numerous global retail chains that get by just fine without it. The legislation restricting the practice is not overly onerous regulation, coming down hard on business. It is protection allowing employees to live their lives without the stress of being unable to plan their lives.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
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