On-Call Retail Shifts Are On-the-Spot in New York

According to the office of the New York Attorney General, Eric Schneiderman, retailers have attempted to skirt this law (NYCRR 142-2.3) by increasingly assigning just enough employees to handle anticipated demand and requiring others to be on-call, allegedly resulting in far less predictable and less stable work hours for much of the retailers’ part-time work force.

In light of these issues, Attorney General Schneiderman sent letters to 13 large retailers on April 10, 2015, launching an investigation over whether such on-call work schedules violate New York labor law. The letters, written and signed by Terri Gerstein, who serves as Schneiderman's Labor Bureau Chief, allege that companies with stores in New York are requiring employees to check in by telephone, text message, or email before a planned shift to see if their services are needed. The letters state that these kind of on-call schedules make it hard for employees to manage family needs and to find “alternative sources of income to compensate for the lost pay.” The letters also allege that those workers forced to work these types of shifts “experience adverse financial and health effects, as well as overall stress and strain on family life.”

In the letters, the Attorney General asked the retailers to provide information on four general areas:

1. What is the process by which the retailer schedules employees for work? Does the retailer use a computerized system such as Kronos or Workplace Systems for scheduling? If so, which system does the retailer use and how does it function? How centralized is the scheduling process? How much autonomy do store managers have in the scheduling process? Are scheduling procedures the same for all stores or do they vary by location?
2. Does the retailer utilize on-call shifts at any locations in New York? If so, the retailer must specify location(s) and, for each such location, how many employees were subject to on-call shifts, the dates, and the specific policies that the employee had to follow.
3. Has the retailer studied or analyzed the efficiencies or cost savings believed to be associated with the use of on-call shifts or the potential or actual effect of on-call shifts on the productivity or well-being of its employees? If so, the retailer is asked to describe the analysis and finding.
4. Finally, the retailer is asked if it uses “on-call shifts” in any other state or foreign jurisdiction and how those practices differ or are the same as the practice in New York.

The retailers are also asked to provide documents that relate to their on-call practices, scheduling techniques, computerized systems, and number of employees subject to on-call shifts. The companies have until May 4 to respond to the letters.

New York is not alone in trying to curb on-call shifts in the retail space. According to the Center for Popular Democracy, a worker advocacy group, bills addressing on-call scheduling are currently being considered in the state legislatures of Massachusetts, Connecticut, Minnesota, Oregon, and California.

On-call scheduling is not just an issue under state law. The US Department of Labor (DOL) has regulations that address whether on-call time should be considered working or non-working time. According to the DOL website on working time:

An employee who is required to remain on his or her employer’s premises or so close thereto that he or she cannot use the time effectively for his or her own purposes is working while on-call.

Whether hours spent on-call is hours worked is a question of fact to be decided on a case-by-case basis. All on-call time is not hours worked.

On-call situations vary. Some employees are required to remain on the employer’s premises or at a location controlled by the employer. One example is a hospital employee who must stay at the hospital in an on-call room. While on-call, the employee is able to sleep, eat, watch television, read a book, etc. but is not allowed to leave the hospital. Other employees are able to leave their employer’s premises, but are required to stay within so many minutes or so many miles of the facility and be accessible by telephone or by pager. An example of this type of employee is an apartment maintenance worker who has to carry a pager while on call and must remain within a specified number of miles of the apartment complex.

An employee who is not required to remain on his or her employer’s premises but is merely required to leave word where he or she may be reached is not working while on-call. Next we must determine if your employee is able to use the on-call time effectively to engage in personal activities.

Although you may require your employee to be accessible by telephone or paging device, or you may establish rules governing use of alcohol or participation in other activities while your employee is on-call, he or she may still be able to use the on-call time to engage in personal activities, such as cutting the grass, going to the movies, going to a ball game, or engaging in other activities of his or her choosing.

The other consideration in determining whether your employee can use the on-call time for his or her own purpose is the frequency of the work calls received during his or her on-call time. If your employee is interrupted to such an extent the he or she cannot conduct his or her regular activities, your employee probably cannot use the on-call time for his or her own purposes. For example, if he or she is unable to finish a meal, read a story to his or her child or read a newspaper during the same on-call period, he or she probably cannot use the time effectively for his or her own purposes.

Similarly, the DOL website says the following about “waiting time”:

Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”