State Attorneys General Cooperate on Predictive Scheduling


By Diane M. Saunders © Ogletree Deakins April 19, 2016

“Predictive scheduling” is one of the most closely watched issues by retailers today. On April 13, New York State Attorney General Eric T. Schneiderman pressed this issue again, sending multiple national retailers a letter signed by attorneys general in seven other states and the District of Columbia. The letter contained an expansive request for information about the on-call scheduling practices in New York, California, Connecticut, the District of Columbia, Illinois, Massachusetts, Maryland, Minnesota and Rhode Island. 

Rewind to April 2015, when Schneiderman garnered national news headlines for launching an inquiry into the on-call scheduling practices of a slew of large national retailers in New York. He expressed public concern about the impact of such practices on workers and raised questions about the possible illegality of such practices under existing New York law requiring “reporting pay.” Reporting pay is mandated for employees who report to work but are not required to perform any work due to events like the closure of the business because of inclement weather.

In the wake of the New York State attorney general’s 2015 inquiry, many large retailers recently announced that they are ending on-call scheduling at all of their stores across the nation. Plaintiffs’ lawyers have entered the “predictive scheduling” fray as well, filing proposed class actions in California claiming that on-call scheduling violates state law and asserting claims for failure to pay reporting time pay, failure to pay all wages earned at termination, failure to provide accurate wage statements and unfair business practices. Finally, several states and municipalities have proposed legislation to address predictive scheduling issues.

Like the 2015 letter, the letter signed on April 13 discusses the perceived negative impact that predictive scheduling has on the lives of workers and requests a slew of information from retailers about their on-call scheduling practices, including payroll records, sample schedules and information about computerized on-call scheduling systems. The letter also requests information about any analysis that retailers have conducted about alternatives to on-call scheduling that they have considered, as well as information about any analysis or study that retailers have conducted about the cost savings or efficiencies of on-call scheduling and the impact of on-call scheduling on the productivity or well-being of its employees.

This unprecedented, coordinated effort by these nine attorneys general will undoubtedly raise the public profile of this issue to new heights. It likely also will engender support for the legislation pending in various locations. This issue can also become an employee relations issue and could be used by labor activists as a rallying cry for union organizing. Retailers will want to educate themselves on this issue and examine their on-call scheduling practices to ensure compliance with the reporting pay laws in various states, particularly those in the Northeast. It seems clear from this recent letter that New York will not be the only jurisdiction interpreting those laws broadly to require pay when employees are prepared to work but their shifts are cancelled.

Diane M. Saunders is an attorney with Ogletree Deakins in Boston.



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