More states question controversial on-call scheduling

Dive Brief:

Attorneys general from eight states and the District of Columbia sent letters to 15 retailers asking them to explain their policies regarding “on-call” scheduling, seeking information and documents related to their use of on-call shifts.

Letters were sent to American Eagle, Aeropostale, Payless, Disney, Coach, PacSun, Forever 21, Vans, Justice Just for Girls, BCBG Maxazria, Tilly’s, Inc., David’s Tea, Zumiez, Uniqlo, and Carter’s, with signatures from any attorney general involved in the state where the retailer has operations.

The coordinated move follows a similar one last year from New York Attorney General Eric Schneiderman’s office, an effort that prompted six retail brands, including Urban Outfitters, Gap Inc., L. Brands, J. Crew, Pier 1, and Abercrombie & Fitch to end on-call scheduling.

Dive Insight:

Algorithms in software have helped retailers lower costs through efficient staffing, cutting workers loose in slow times, having them wait "on call" in case things get busy, and leaving little room for flexibility. The practice makes it difficult for retail employees to juggle the realities of their those jobs while also trying to manage their households and earn enough money to get by.

“On-call shifts are unfair to workers who must keep the day free, arrange for child care, and give up the chance to get another job or attend a class–often all for nothing,” Schneiderman said in a statement. “On-call shifts are not a business necessity, as we see from the many retailers that no longer use this unjust method of scheduling work hours.”

Schneiderman’s office has been keen on cracking down on the practice for a while now, which in most cases violates his state’s laws, and there’s been rising sentiment among lawmakers in several states—and possibly even in Congress—to pull back on the practice.

But even with this pressure, and despite its dubious legality in some areas, on-call scheduling is still fairly widespread, according to the Fair WorkWeek Initiative.

“Over the past year, workers have been speaking out about the struggles caused by increasingly unpredictable hours,” Fair Workweek Initiative director Carrie Gleason said in an email to Retail Dive. “Workers should not have to choose between living with dignity and getting enough hours to put food on the table. It is heartening to see more and more policymakers and regulators take action to address a crisis affecting millions of Americans.”

Retailers should be prepared to see more such concerns, warnings, and even legislation as just-in time scheduling gets more scrutiny, Gail Gottehrer, a labor & employment litigator at Axinn Veltrop & Harkrider in New York who works on behalf of employers, told Retail Dive last year. The practice was a major concern when the San Francisco Board of Supervisors last year unanimously passed its Worker Bill of Rights law.

“This can be especially difficult for multi-state employers,” Gottehrer said. “If you’re in a lot of jurisdictions it can be complicated to get things right.”

Not all the retailers that received letters use the practice. Forever 21 emailed Retail Dive to say, "Contrary to published reports, Forever 21 does not permit on-call scheduling nor do we have a company policy around doing so." On Friday, American Eagle Outfitters also released a press release reiterating that it has banned the practice nationwide. "We decided in November 2015 to cease the use of “on-call shifts” and advised our stores," the company states. "We are taking steps to reinforce and assure adherence to this policy across our store fleet."

Spokespeople for Coach and Payless told Reuters that they don’t use on-call scheduling, and a Zumiez spokesperson told Reuters that it’s cooperating, and a spokesperson for Carter's said that company is reviewing the letter. Other retailers receiving the new letters did not immediately respond to requests for comment, according to Reuters.