Attorney Generals of Several States Continue to Push for Retailer Transparency of On-Call Scheduling Practices

Yarelyn Mena and Edgar M. Rivera, Esq.

Several state investigations have found that the retail practice of “on-call scheduling” – where workers must call their employers to check if they are needed for scheduled shifts and are not paid if their shifts are cancelled – is so prevalent that several state attorney generals are demanding that major retailers respond to questions regarding their scheduling practices and answer requests for documentation.

On April 12, 2016, the attorney general of eight states and Washington D.C. sent letters to fifteen retailers, including Aeropostale, Payless and Coach, asking whether they use on-call scheduling and, if so, how they implement it. The retailers must provide answers by April 25, 2016. The officials are concerned about workers’ well-being because on-call scheduling leads to erratic schedules, making it difficult to plan child care, work a second job, or take classes.  Essentially, workers must make themselves available but are not guaranteed work while employers receive the benefits of always having workers available if the store becomes busy without having to pay workers.  On-call scheduling can also lead to unexpectedly low pay because employers often send employees home on slow days without proper compensation.  Additionally, low income workers often do not have the financial flexibility to allow for this type of uncertainty in their pay. In sum, 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 their employee convenience.

In April 2015, New York Attorney General Eric Schneiderman, who also signed the April 12 letters, began his campaign to end the on-call scheduling practice, sending warning letters to retailers in New York State, which The Harman Firm LLP wrote about in a September 23, 2015 blog post titled “The Retail Industry is Pushed by New York’s Attorney General To End Its On-Call Scheduling Practice.” Within months of Mr. Schneiderman’s investigation, several retailers targeted by his office, including Gap Inc. and Bath & Body Works, announced they were ending the practice.

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.”  However, it is not clear as to whether employees whose shifts are cancelled prior to their arrival at the workplace are covered. In 2014, San Francisco became the first locale to pass a law requiring employers to post schedules two weeks in advance.

Rob Karr, president of the Illinois Retail Merchants Association, acknowledges that the retail industry is “dynamic and constantly evolving,” and is hopeful for the future, stating, “While no system is perfect, there are a number of technologies emerging to help employers and employees establish a scheduling process that works in the best interests of both. A one-size fits all approach will ultimately work against the best interests of both — and quite possibly the consumers they serve.”

Even if these investigations do not lead to legal action against the retailers, it is certainly likely to pressure more companies to end on-call scheduling, according to organizers with workers’ rights groups and unions. These organizers are aiming for rules, similar to those passed by San Francisco, requiring employers to post schedules weeks in advance and pay workers whose shifts are canceled the day of or who are called in on short notice.  Nonetheless, employers and plaintiffs’ lawyers are currently watching a series of pending class actions against retailers including Abercrombie & Fitch, Pacific Sunwear, and Forever 21 that claim on-call scheduling violates existing labor laws.

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