Is “On-Call” Scheduling Legal?

Is “On-Call” Scheduling LegalThe New York attorney general’s office is currently investigating whether impermissible “on-call” scheduling is used by a variety of major retailers. At issue is whether requiring workers to check in within hours of their shift violates New York’s labor laws, which requires at least four hours of pay at the minimum wage for workers who show up for a scheduled shift.

On-call shifts, frequently used in retail, typically require employees to call in to work just a few hours in advance, or the night before, to find out if they need to show up for work that day or the next. These shifts can lead to unpredictable work schedules, which can take a toll on employees, especially those in low-wage sectors. According to the New York attorney general’s office, “without the security of a definite work schedule, workers who must be ‘on call’ have difficulty making reliable childcare and elder-care arrangements, encounter obstacles in pursuing their education, and in general experience adverse financial and health effects, as well as overall stress and strain on family life.” Being on-call can also interfere with employees’ abilities to obtain a second job to ensure financial security for their families.

In California, on-call waiting time may be compensable if it is spent primarily for the benefit of the employer and its business.”  Determining whether an employee’s on-call waiting time is compensable depends on the different circumstances of each case. For example, in a recent case, a California Court ruled that security guards who work a twelve-hour shift and spends the next eight hours on-call must be compensated, even if they sleep during those eight hours, if they are “substantially restricted” in their use of the on-call time for personal pursuits, and are under sufficient employer control. A guard under different circumstances might not be compensated for on-call time.

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Notably, San Francisco has a new law pertaining to on-call shifts that is similar to New Yorks’. Employers have to provide employees in the city with notice of schedule changes, and if the employer changes an employee’s schedule on less than seven days’ notice, but more than 24 hours’ notice, the employer must provide an extra hour of pay for each changed shift. If the employer changes the employee’s schedule on less than 24 hours’ notice, the employer must provide an additional two hours of pay if the changed shift is four hours or less or an additional four hours of pay if the changed shift is longer than four hours.

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Labor Law Office, APC

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2017-12-13T21:46:41+00:00 May 6th, 2015|General Labor Law, Wage and Hour|