The Office of the New York Attorney General has recently announced an investigation into certain employment policies utilized by 13 major retailers, including Gap, Abercrombie & Fitch, Target, J. Crew, Sears, and TJX, that allow them to keep employees on unpredictable “on call” schedules. “On call shifts” require employees to call in to work a few hours prior to the start of their shift, or sometimes the night before, in order to find out whether or not they need to appear for work at their scheduled shift time. This provides the company with the ability to deny an employee’s services at a time much closer to the start of their scheduled shift. Further, if an employee’s services are not needed, that employee will not receive any pay for the day. This provides the employee with little recourse in the way of time to make alternative plans or find an alternative source of income.
These new policies have recently become more popular with employers, who can now utilize increasingly accurate software to track the expected flow of customers. Employers rely on this policy as a cost-cutting measure, which allows them to assign the minimum amount of required employees to deal with anticipated store traffic. However, New York Labor Law requires that employers normally pay employees who report for schedule shifts for at least four hours of work, even if they are sent home. This is referred to as “Call in Pay.” Therefore, these policies may be found to violate the New York Labor Law.
The employment lawyers at Fitapelli & Schaffer, LLP believe that these policies are in clear violation of the intention behind the New York Labor Law. Employees should not be the ones required to absorb the impact from a short-term decrease in customer traffic. In consideration of the size of the companies being investigated, it is especially unreasonable to ask employees, reliant on these wages, to find some sort of replacement income within 4 hours of having a schedule shift canceled. We will continue to update our website with additional news from this investigation. If you are or have been subjected to these policies, please contact us at (212) 300-0375 or visit our website at www.fslawfirm.com.