The Zero Sum Game of “On-Call” Staffing

NEW YORK, NEW YORK (09/10/15) — Employer = WINNER! Have workers on-call waiting around just in case they are needed and if they are needed, deeming it mandatory that worker must come in. If they don’t need said worker that day after all, they don’t have to pay s/he anything. It’s like having day laborers; only these sit by the phone instead of stand on the side of the road.

Employee = LOSER! They wait around, uncertain if they will be working or not until the last minute and must forego making any plans to attend classes, work another part-time job on that day, schedule health care appointments, or make plans to visit with family or friends. This arrangement is a particular nightmare for workers that have a child or elderly relative at home and require sitters while they are working. The choice is: hire the sitter before you know if you are working or not OR wait until you are informed you are working, which leads to having a hard time finding a sitter on very short notice, as retailers do not give any advance notice and may just give the employee enough time to dress and get to the store to start working.

The Good News

Many states and municipalities have become wise to this practice and are cracking down on it. California and at least 10 other states are working on this issue. As of last year, a law was passed in San Francisco which mandates large retail chains to give two weeks or more notice of their work schedules and requires the retailer to pay the employee … whether the employee comes to the workplace or finds out by telephone or text that they are not required to work the scheduled shift. An Act in Congress, introduced by the Democrats twice so far, called the “Schedules that Work Act” is a bill similar to the San Francisco law, which, if passed would ensure the same protection for our entire workforce. Unfortunately, it hasn’t made it out of committee – yet.

New York’s Attorney General, Eric Schneiderman, is one of the most active public officials on this issue, and is currently investigating 13 major retail chains with NY stores for using on-call shifts to schedule employees. The chains initially targeted are:

  • Abercrombie & Fitch
  • Ann Taylor
  • Burlington Stores
  • Crocs
  • Gap
  • JC Penney
  • J. Crew Group
  • L Brands
  • Sears
  • Target
  • TJX
  • Urban Outfitters
  • Williams Sonoma

As reported by the Wall Street Journal, within a mere five months after some of them got the first letter on the subject from AG Schneiderman, which only warned them that they might be breaking NYS labor law and asked for initial information on how each chain uses on-call scheduling, some retail chains abruptly halted their on-call scheduling practices effective IMMEDIATELY or announced that they had plans to do so ASAP. The chains that have caved in so far are:

  • L Brands (includes Victoria’s Secret and Bath & Body Works)
  • Abercrombie & Fitch
  • Gap (includes Athleta, Banana Republic, Gap, Intermix, and Old Navy)

AG Schneiderman is pleased with the response so far and praised Bath & Body Works for being the latest retailer to end on-call scheduling.

“Employees deserve stable and reliable work schedules to adequately plan for childcare, transportation and other basic needs,” Schneiderman said, adding that his inquiry had yielded “positive results for tens of thousands of workers.”