The Retail Industry Is Pushed By New York’s Attorney General To End It’s On-Call Scheduling Practice

Yarelyn Mena

On April 10, 2014, New York Attorney General Eric Schneiderman issued warning letters to thirteen New York retail chains, including Gap Inc. and Target Corp., notifying each that their “on-call” scheduling practices may violate New York law. On-call scheduling, a phenomenon chiefly in the retail industry, allows employers to cancel employees’ scheduled shifts and demand they pick up unscheduled shifts with little notice.

New York law requires employees who report to work before their scheduled shift, “be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” On-call scheduling lets employers quickly staff their stores on busy days, and send employees home early on slow days, thus, saving money on payroll at the expense of employee convenience. Employers often send employees home on slow days without proper compensation. On-call scheduling is not only a detriment to employee’s salaries, but also to their well-being; employees, especially those who must plan child care or other family accommodations around their work shifts, are greatly inconvenienced by erratic scheduling.

Gap Inc., one of the largest retailers around the globe, plans to implement a 10-day notice to all employees before a shift change beginning in 2016. The global president of Banana Republic, one of the many retailers owned by Gap Inc., stated, “each of our brands has committed to improve their scheduling policies to provide their store employees with at least 10- to 14-days notice. The majority of brands will be rolling out these new policies in September, and all Gap Inc. brands are committed to phasing in advanced schedules by 2016.” Similarly, retailer Abercrombie & Fitch implemented a new policy, sending schedules to its employees a week in advance and allowing employees to opt to receive email alerts about shift changes or to complete a form for open shifts.

Tsedeye Gebreselassie, senior staff attorney at the National Employment Law Project, found that technology is somewhat to blame to the extent that constant, instantaneous communication has changed the nature of the employer-employee relationship, making it easier for employers to adopt an on-call system. Employees “could be headed to work and get a text message from the boss saying, ‘I don’t need you to come in,’ and that worker has already arranged for child care or changed a class schedule. There are real gaps in the rules for dealing with that.”

In efforts to resolve these issues, Mr. Scheniderman has asked retailers to provide him with information on how each retailer enforces its on-call systems. The information requested includes the software used to schedule labor hours, and the system for penalizing employees who cannot commit to their on-call schedules. He is also requesting data from retailers who have done research on their employees’ well-being.

Greater transparency for employment practices is a step in the right direction to ensure that employees are being treated fairly and that employment procedures continue to be modified to fit employees’ needs.

If you believe your employer has policies in violation of New York laws, please contact The Harman Firm, LLP .