This week, New York State Attorney General Eric Schneiderman sent letters to 13 large retailers in his state questioning their scheduling practices.
New York has a law on the books that requires employers in most industries to pay workers four hours’ worth of pay if they show up to work, even if they’re then sent home due to a lack of demand. Schneiderman is looking into whether these large companies, which include Gap, Target, Abercrombie & Fitch, the owner of T.J. Maxx and Marshall’s, J. Crew, and Sears, are violating the law with on-call shifts that require employees to call in to work the night before their shift or even sometimes a few hours before to find out if they need to come into work.
New York’s law is meant to “guard against workers coming into work but there isn’t work for them, so they’re sent home,” explained Tsedeye Gebreselassie, a senior staff attorney at the National Employment Law Project. That worker has “already made themselves available for that shift. Maybe they didn’t take on a second job, maybe they arranged their classes, arranged for childcare, maybe they paid transportation costs to and from work.” New York’s law is meant to compensate them for all those potential costs even if they don’t get the chance to earn their wages.
New York is not the only state that has such a law, however. California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington, DC also have what are known as “reporting time pay” laws with differing requirements but all mandating that employers compensate workers who show up only to be sent home early. Some require workers to get minimum wage, some to get their regular wages.
This problem is widespread, particularly in service industries. At least 10 percent of the American workforce is given on-call or irregular shifts, and another 7 percent have split or rotating ones. More than a quarter of employees have irregular schedules in retail, for example, and in New York City, a quarter of retail workers said they were given on-call shifts. This can throw their lives into chaos if they make arrangements to be available for a shift that they are then told not to work.
But these state laws are now being put to a slightly new test. “It’s unclear whether or not these reporting pay requirements apply to what employers are doing right now, which is scheduling workers for on-call shifts,” Gebreselassie said. The laws are clear that once someone actually gets to work, she has to be paid if she’s sent home before the end of her normal shift. But today, employers often ask workers to call in a short time ahead only to tell them not to come, and sometimes even text employees who are already traveling to work that they should turn around because they’re not needed. “They’re being forced to be available for the employer but not compensated for that time,” she said.
On top of this, few people in the eight states with these requirements know about them. “The problem is that it’s a rule that is rarely enforced and most workers don’t know about it,” she explained. Schneiderman’s letter indicates he may attempt to enforce it, which could change that dynamic in the state.
Some places are also addressing the issue of scheduling with more robust and comprehensive legislation that would make things very clear. In November, San Francisco passed the Retail Workers Bill of Rights, which requires retail chains to pay employees who have to be on call for a shift even if it gets canceled, as well as to give workers at least two weeks notice of their schedules or pay them “predictability pay.” Congressional lawmakers also took up the idea last year, introducing the Schedules that Work Act to require at least two weeks notice of schedules and pay for workers who are on call but not asked to come in or who get sent home before the end of their shifts.