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February 11, 2016

On-Call Scheduling Practices Under Scrutiny in New York

In 2015, New York Attorney General Eric Schneiderman sent 14 letters to parent companies of national retailers warning that on-call scheduling of employees may violate State regulations.  The letters highlight the Attorney General’s position that the practice of on-call scheduling may impose an undue burden on employees.  Terri Gerstein, the Attorney General’s Labor Bureau Chief, has said employees who learn hours before their scheduled shift that their services will not be needed are deprived of pay for that day and of the ability to plan adequately for childcare or other necessities.

Under existing regulations, employers in most industries are generally required to pay “call-in pay” in certain instances where an employee “reports” to work, but then is informed that his or her services are not needed.  The circumstances under which call-in pay is owed, the number of hours of call-in pay due, and the rate at which those hours must be paid vary depending upon the industry.  By way of example, the Wage Order applicable to Miscellaneous Industries provides that “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.”

Historically, the controlling call-in pay regulations have been interpreted to require employers to pay employees who physically report to work before learning they will not be needed for a shift.  It appears the Attorney General will construe the regulations more broadly in the future and argue that the call-in pay obligation is triggered when an employee checks in with his employer – via text, email, phone or in person – to determine whether his or her services are needed for a shift.  If an employee checks in and is told not to report, the Attorney General will likely argue the employee must be paid call-in pay.  This interpretation would expand the current understanding of the regulation and impose an increased burden on employers.

In response to the Attorney General’s investigation into scheduling practices, nine retailers have agreed to end on-call shifts in New York and, in some instances, nationwide, over the next several months.  Pier 1 Imports was the most recent company to agree to abolish the practice of on-call scheduling.  In a December press release regarding Pier 1 Imports’ decision to end on-call shifts, the Attorney General noted that all of the retailers that received the above-mentioned letters had agreed to end the practice of on-call scheduling or had responded they do not engage in such scheduling.


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