Last week, New York Attorney General Eric Schneiderman along with attorneys general from seven other states announced that six major retailers, namely, Disney, Aeropostale, Carter’s, PacSun, Zumiez and David’s Tea, will stop scheduling employees for on-call shifts. This scheduling practice requires employees to call their employer one to two hours before their scheduled shift to find out if they are required to report to work that day. The attorneys general all shared a concern that because on-call shifts do not provide a concrete work schedule, it hinders planning for child care and elder-care arrangements and makes it difficult to pursue an education or other important activities. Attorney General Schneiderman stated, “People should not have to keep the day open, arrange for child care, and give up other opportunities without being compensated for their time.”
After these retailers received a joint letter from the attorneys inquiring about their use of on-call shifts and after having discussions with the attorneys general, the retailers agreed to stop using this type of scheduling practice. In lieu of on-call shifts, they have implemented alternative staffing methods, such as pool arrangements.
Several issues arise involving on-call time, such as, whether an employee should be paid while they wait to see if there’s work to be performed or if they should be paid while they are on “standby.” Whether an employee should be paid for this time depends on who controls that time and what restrictions are placed on an employee. If an employee is free to use that time to engage in their own personal activities, then a court is less likely to find that an employee should be compensated.
New York has a “call in pay” regulation which requires employers to pay workers for reporting to the workplace, even if the employer has no work for them to perform. The regulation requires employers to pay at least minimum wage for four hours, or if the shift is shorter than four hours, the number of hours in the shift, to an employee who is requested or permitted to report to work.