On April 12, 2016, New York Attorney General Eric Schneiderman sent letters to fifteen retailers requesting information regarding their use of “on-call shifts” in scheduling employees. The letters were similar to those letters sent by the New York Attorney General in April, 2015 with a critical difference – the Attorneys General from California, Connecticut, the District of Columbia, Illinois, Maryland, Massachusetts, Minnesota, and Rhode Island also signed on, committing to investigate the same retailers’ scheduling practices in their own jurisdictions.
On-call scheduling (or Just-In-Time scheduling) is a labor practice in which employees’ work hours are closely linked to consumer demand. Employees are required to contact employers the day of a shift to determine whether they are required to show up for work or stay home without pay, leave work before completing their scheduled hours if the store is slow, and make themselves available for last-minute shifts. This blog has been reporting on the increasing public awareness of and growing public concern over the unpredictability and uncertainty that on-call scheduling can create in the lives of workers (see posts on 9/17/2014 and 1/13/2016). According to a 2014 report, researchers from the University of Chicago found that 41 percent of 26- to 32-year-olds with hourly work received their work schedules a week or less in advance.
The letters from the Attorneys General state that “unpredictable work schedules take a toll on employees. Without the security of a definite work schedule, workers who must be ‘on call’ have difficulty making reliable childcare and elder-care arrangements, encounter obstacles in pursuing an education,” and interfere with workers’ ability to supplement their income with second jobs. The letters cite the New York state reporting pay law, 12 NYCRR 142-2.3, which requires that “an employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours or the number of hours in the regularly scheduled shift, whichever is less, at the basic hourly wage.” Although Maryland, Minnesota, and Illinois don’t currently have reporting pay laws, those Attorneys General signed onto the letters to express concern about the impact of on-call scheduling on hourly workers and their families according to CBS News.
The information requests were sent to Aeropostale, American Eagle Outfitters, BCBG Max Azria, Carter’s, Coach, David’s Tea, Forever 21, Justice, Pacific Sunwear of California, Payless Shoesource, Tilly’s, Van’s, Uniqlo, Walt Disney Co., and Zumiez. In 2015, as a result of a similar inquiry by the New York Attorney General, brands including Abercrombie & Fitch, Gap, J.Crew, Urban Outfitters, Pier 1 Imports, and L Brands (parent company of Bath & Body Works and Victoria’s Secret) all agreed to end the practice of assigning on-call shifts. In their letter, the Attorneys General cite the conversion of these businesses to other scheduling methods designed to address unexpected absences and unanticipated business volume as evidence that on-call scheduling is not a business necessity. According to the Wall Street Journal, Coach, Forever 21, Payless Shoesource, and Uniqlo have stated that their companies don’t engage in on-call scheduling, and American Eagle ceased the use of on-call shifts in their stores in November 2015.