A former employee of Forever 21 hit the company with a lawsuit in California state court over its exploitative scheduling practices, just a week after a class action was filed against BCBG Max Azria alleging the same practices.
Raalon Kennedy, who previously worked at Forever 21 as sales clerk, claims the company requires employees to be on call for shifts but doesn’t compensate them with required pay for being made to report to work yet being sent home, as per California law. “In reality, these on-call shifts are no different than regular shifts, and Forever 21 has misclassified them in order to avoid paying reporting time in accordance with applicable law,” he said.
Robynette Robinson’s suit against BCBG seeks class action status on behalf of workers who she alleges were similarly required to report for on-call shifts but not asked to work, yet were not given reporting time pay. “This class action on behalf of BCBG Max Azria Group LLC retail store employees challenge[s] a new form of wage theft — the practice of scheduling employees in retail stores for ‘on-call’ shifts but failing to pay the employees required reporting-time pay,” she said.
Forever 21 and BCBG could not be immediately reached for comment.
Bridgford Gleason & Artinian, the law firm representing both Kennedy and Robinson, told Law 360 that it has also filed similar lawsuits against other retailers that include The Gap and its subsidiaries, PacSun, and Tilly’s, and plans to file four or five more.
California law stipulates that employees be compensated with “reporting time pay” for being required to report to work but only being asked to work less than half of the actual shift. That pay is supposed to come to an employee’s regular rate of pay for half of a day’s work.
Other states have these requirements as well: Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island, and Washington, DC all have similar laws on the books. New York’s law is being put to the test by Attorney General Eric Schneiderman, who sent letters to 13 large retailers in April looking into whether their scheduling practices run afoul of the law. Since then, four of them have pledged to end on-call scheduling.
Chaotic scheduling is rampant throughout the retail industry, however, and goes beyond being made to be available for a shift without knowing whether there will actually be work. One survey in the service sector found that a third of employees rarely get consistent work schedules, while more than half only find out their schedules a week or less in advance. A different study found that within retail, more than a quarter of workers have irregular schedules that include on-call shifts, two shifts in the same day, or rotating shifts. Forty percent of retail workers in New York City say they have no set hours from week to week, while a quarter have been required to be on call.
These schedules can make it impossible to get by. Without a set minimum of weekly hours, workers may never know week to week whether they’ll earn enough to pay their bills. Without knowing for sure when they’ll be asked to come in, child care or transportation arrangements can fall through. And it makes it extremely difficult to hold down a second or third job to help make ends meet.