Tuesday, January 19, 2016

Warning for Employers: On-Call Scheduling is Dangerous!

January 2016
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.

Generally, employees who are on-call do not have to be compensated under federal law (some state laws are stricter or changing to become stricter) as long as the terms of their on-call status do not overly restrict their ability to use their “on-call” time for their own personal needs. But if an employer creates on-call restrictions that inhibit the employee’s ability to use the time for personal time, it can become “working time.”
 
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.