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Retail employers face scrutiny for on-call scheduling, shift practices

October 14th, 2015  |  Lisa Milam-Perez

By Lisa Milam-Perez, J.D.

Perhaps feeling the heat from worker advocates and state enforcement agencies, several nationwide retailers recently have put an end to “on-call” policies that require workers to be off-the-clock but at-the-ready, available to come into work if necessary, as well as to scheduling practices that afford little predictability to retail employees who typically work part-time in an industry that serves customers days, evenings, and weekends.

End to on-call shifts. Urban Outfitters is the latest retail employer to end on-call shifts, at least for workers in the company’s New York stores. It did so after reaching an agreement with New York Attorney General Eric T. Schneiderman’s office, which announced the deal with the company in an October 7 press release. In addition to abolishing its on-call practice, the employer said it would now provide employees with their schedules at least one week prior to the start of the workweek.

The attorney general had set his sights on the retail industry back in April 2015, when he sent letters to 13 major chains asking for information about their scheduling practices. Schneiderman was concerned that the employers were violating state labor protections. “Our office has received reports that a growing number of employers, particularly in the retail industry, require their hourly workers to work what are sometimes known as ‘on call shifts’—that is, requiring their employees to call in to work just a few hours in advance, or the night before, to determine whether the worker needs to appear for work that day or the next,” Labor Bureau Chief Terri Gerstein wrote.

Urban Outfitters is the fifth major retailer to cease on-call scheduling following the agency’s inquiry, joining Bath & Body Works, The Gap, Abercrombie & Fitch, and Victoria’s Secret.

Scheduling practices scrutinized. Calls to reform retailers’ scheduling practices are an outgrowth of grassroots (and union-backed) activism such as the “Fight for 15” movement, which has focused its wrath on the retail and fast-food industries in particular. While retail employers have had to fend off attacks in the court of public opinion and in their parking lots and aisles, they are increasingly vulnerable to challenges from state administrative agencies as well.

Although the National Retail Federation attributes the developments in New York to the whims of an “activist” attorney general, the trade group also noted a broader trend underway. Case in point: In Massachusetts, the attorney general’s office has received a ballot initiative petition for a measure that would allow penalties to be imposed when retailers or other service industry employers change an employee’s schedule within two weeks of the altered work shift.

Legislative pressure is mounting, too. The most sweeping measure so far is the San Francisco Retail Workers’ Bill of Rights, enacted in 2014, which provide retail employees working within the municipality with heightened hours and retention protections, and fair scheduling and treatment. At the state level, Michigan introduced a scheduling bill in 2014 and, so far this year, legislation to regulate scheduling practices has been introduced in California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, New York, and Oregon.

Federal legislation proposed. Meanwhile, in Washington, Democrats in July introduced the “Schedules That Work Act” (S. 1772). The bill, introduced in both the House and Senate, would regulate “unstable, unpredictable, and rigid scheduling practices,” such as on-call duty that does not guarantee paid work hours, split-shift scheduling of nonconsecutive hours, sending employees home early without pay when demand is low, and “punishing” employees who request schedule changes. The measure was introduced in the previous Congress but never made it out of committee.

The latest bill, aimed at the retail, food service, and cleaning industries, would:

• protect employees from retaliation when they request a more flexible, predictable, or stable schedule;
• compensate employees for at least four hours of work when they report as scheduled for at least four hours but are sent home early;
• require employers to grant schedule changes to employees who make such requests due to caregiving duties, a health condition, education or training courses, or the demands of a second job, unless the employer has a bona fide business reason for denying it;
• require employers to provide employees with their work schedules at least two weeks in advance. Although employers may later change the schedules, they must pay employees one hour’s worth of extra pay for schedules that are changed with less than 24 hours’ notice; and
• provide workers an extra hour of pay when scheduled to work split shifts or nonconsecutive shifts within a single day.

The legislation empowers the Secretary of Labor to enforce its provisions. Of equal concern: it provides a private right of action, including class actions, and allows for direct monetary damages and liquidated damages for violations.

Around the corner… Retail employers must keep a watchful eye on regulatory and legislative developments on the employee scheduling front, both federal and state—no small burden for large employers operating in multiple jurisdictions, and facing a maze of mandates that vary from state to state. In addition, as scheduling practices face increasing public scrutiny and other major chains voluntarily alter their existing practices, retail employers might well consider following suit before the law compels it.

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