By Nancy E. Joerg, Esq.
The practice of “on-call scheduling” is under fire! Employers
who use this practice should be on guard about a changing legal climate in the
United States. Many employee legal advocates want this area strictly regulated.
WHAT IS ON-CALL SCHEDULING?: On-call scheduling gives managers valuable flexibility
to hold workers “on-call.” Then the manager can determine how many workers are actually
needed for a particular shift (after the managers get a sense of how busy a
store will be). New advanced technologies can assist the managers in more
precisely evaluating how many employees are actually needed at any given time. But
critics (and there are many!) of on-call scheduling say the practice is potentially
harmful and unfair to employees. These critics note that these employees are
required to be ready to work if needed but generally are not paid for their
time if they are eventually told to stay home.
Under some systems, employees
are required to call in on a daily basis to determine if they are expected to
work the next day.
If the employee is on-call
and suddenly called into work, the employee is expected to report to work
shortly after called in. On-call scheduling can prevent the employee from
obtaining a second job, lining up child care, making personal plans, traveling,
etc.
FLEXIBILITY OF ON-CALL SCHEDULING: Because labor costs are such a significant part of operational
expenses, employers want to spend the labor budget as wisely as possible while
still providing adequate coverage. Naturally, more employees are needed during
times when stores or businesses are busier. However, employers cannot predict
weather events, traffic jams, and other random events that can change sales
patterns (and the resulting need for employees) in an instant.
BACKLASH AGAINST ON-CALL SCHEDULING: Recently, there has been a strong backlash against employers
who use on-call scheduling. Employee advocates complain that on-call scheduling
is abusive and unfair to workers because an ever-changing schedule makes it
impossible for workers to plan on a consistent income.
SOME MAJOR RETAILERS ARE DISCONTINUING ON-CALL
SCHEDULING: Recently,
Pier 1 Imports agreed with the New York Attorney General to stop on-call
scheduling nationwide by April 2016, joining many other major retailers who
gave up the practice of on-call scheduling. Pier 1 also agreed to post employee
schedules at least 10 to 14 days in advance, to permit some predictability to
employee schedules.
This discontinuation of
on-call scheduling is a growing nationwide trend among retailers. Pier 1
follows Abercrombie & Fitch Co., The Gap Inc., J. Crew Group Inc., Urban
Outfitters Inc., Bath & Body Works LLC and Victoria’s Secret in ending
on-call scheduling.
LEGISLATIVE DEVELOPMENTS: Legislative pressure to shape and control scheduling
practices is mounting against employers. Employers should therefore stay up to
date on the law regarding scheduling practices in the jurisdictions where they
have employees. States vary widely.
The most sweeping legislative
measure so far is the San Francisco Retail Workers’ Bill of Rights
enacted in 2014. This Bill of Rights provides certain retail employees working
within the City of San Francisco with “fair scheduling and treatment.”
Michigan introduced a scheduling
bill in 2014. In 2015, legislation to regulate scheduling practices has been
introduced in California, Connecticut, Illinois, Indiana, Maine, Maryland,
Massachusetts, Minnesota, New York and Oregon.
Employers must keep a
watchful eye on regulatory and legislative developments regarding on-call scheduling,
which may be burdensome for employers operating in multiple jurisdictions and
states.
Questions?
Call Attorney Nancy E. Joerg of Wessels
Sherman’s St. Charles, Illinois office: (630) 377-1554 or email her
at najoerg@wesselssherman.com.