Employers Sued Over On-Demand Scheduling

By Allen Smith November 17, 2015

On-demand scheduling, which requires employees to call in an hour or two before their shift is scheduled to begin to see if they have to report to work, is unfair and unlawful, according to an employee attorney who is suing major retailers in an attempt to stop the practice.

Michael Kent, an attorney with McNicholas & McNicholas in Los Angeles, said that with on-call scheduling, employees often are told they are not to report to work, even though they have to set the time aside in advance as definite work hours. This interferes with their chances for other gainful employment or educational opportunities.

He has sued eight major retailers over on-demand scheduling, and said that more lawsuits will be filed. The lawsuits allege that on-call scheduling violates California state reporting time pay laws, which require pay for workers who show up to work, but then are sent home.

His firm and the firms of Bridgford, Gleason & Artinian in Newport Beach, Calif., and Eagan Avenatti in Newport Beach, Calif., filed lawsuits this summer and fall against the following establishments: Abercrombie & Fitch, Bath & Body Works, BCBG, Forever 21, Gap (and its subsidiaries, Banana Republic and Old Navy), Pacific Sunwear, Tillys, and Williams-Sonoma.

Some of the retailers, including Abercrombie & Fitch, Bath & Body Works and Gap, already have done away with on-call scheduling as of this year, following a spring 2015 letter from New York’s attorney general to 13 retailers about the practice.

New York Attorney General Eric Schneiderman said that on-demand scheduling might violate New York law, which requires employers to pay employees who report for work for at least four hours at the minimum wage if they are sent home, Reuters stated.

‘Wage Theft’

Businesses that schedule on-call shifts are engaged in “wage theft,” Kent told SHRM Online.

Under California law, if someone reports to work but is not permitted to work, they are owed half of their scheduled shift pay under a reporting time pay law. The same rule applies to those who call in for on-demand scheduling in California, according to Kent.

With on-call scheduling, retailers shift the business cost of scheduling to their employees, he said. An employee’s failure to call in typically is subject to discipline, including termination.

“We believe with the emergence of the sharing economy, there are alternatives to these scheduling practices,” Kent added, saying that an application similar to Uber might be used to see who is available to work.

Notice of Scheduling

In addition to the legal challenges of on-call scheduling, Kent said some cities require employers to give notice of scheduling a reasonable amount of time in advance.

For example, he said that San Francisco has a retail employee bill of rights that requires 14 days’ notice of each employee’s schedule with compensation required if the schedule changes at the last minute.

Companies should be mindful of employees’ time and ability to earn a wage elsewhere when scheduling employees and not engage in unlawful practices, Kent said.

The sued retailers did not respond to requests for comment.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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