“On-Call” Shift Scheduling Practices – Issues for Companies Operating on the West and East Coast (and in between)

It is common for employers to use on-call shifts and other flexible scheduling practices based on the variable needs of the business. In many cases, this creates the potential for employees to pick up additional shifts over their regular schedule. However, it is becoming increasingly difficult for employers to use these practices due to new legislative trends.

On the West coast, San Francisco, California has passed Retail Employee Rights Ordinances to provide employees scheduled to work on-call shifts with predictability pay if the employer modifies the scheduling of a shift with less than seven-days' notice. The Ordinances are operative as of July 3, 2015. see http://sfgsa.org/index.aspx?page=6828.

On the East coast, the New York Attorney General Schniderman's office sent letters and discovery requests in the past few months to very large Retailers concerning their on-call shift scheduling practices. The New York Department of Labor likely will get involved too.

New York law does not specifically address on-call shifts, but its wage and hour regulations do require that any employee "who by request or permission of the employer reports for work on any day" be paid for at least four hours of work at minimum wage, even if he or she is sent home. N.Y Comp. Codes R. & Regs. Tit. 12, Section 142-2.3. It's unclear how this regulation is intended to be applied to the practice of on-call scheduling, where the employee does not actually "report" for work, but instead checks in by telephone or text message to see if he or she is needed. The New York Attorney General's investigation, however, could prompt eventual lawsuits against employers, aimed at requiring that they give on-call employees at least four hours' minimum wage pay, regardless of weather they are ultimately called into work. see – www.labor.state.ny.us/formsdocs/wp/Part142s.pdf

Reporting Time Pay Laws

Eight states and the District of Columbia and Puerto Rico have reporting time pay laws that require some level of minimum payments for employees sent home early from shifts. The laws vary slightly from state to state:

  • California – When employees report to work, but are given less than half of the scheduled day's work, the employer must pay the employee, at her regular rate of pay, for half of the scheduled day's work, up to four hours.
  • District of Columbia – When employees report to work as scheduled, but are given less than four hours of work, the employee must be paid for at least four hours, at the regular rate of pay for hours worked and minimum wage for hours not worked.
  • Massachusetts – If an employee is scheduled to work more than three hours but sent home before working three hours, the employer must pay employees for at least three hours at minimum wage.

San Francisco, California, Retail Worker's Bill of Rights

This law requires retail chains that have 11 or more locations and employ 20 or more people in San Francisco to give workers at least two weeks' advanced notice of their schedule, or give workers additional "predictability pay." Workers must also be paid for canceled on-call shifts. see – www.thenextgeneration.org/publications/san-francisco-predictable-scheduling-and-fair-treatment-for-formula-retail-employees-ordinance

As these on-call shift scheduling laws in various states begin to be litigated, companies are advised to review their policies and check their Wage and Hour Insurance Coverage which may be impacted by potential litigation.

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