In April 2016, Massachusetts Attorney General Maura Healey joined eight other state attorneys general in sending out information and document requests to large, national retail chains that assign their employees to work “on-call” shifts. This multi-state effort comes on the heels of New York Attorney General Eric Schneiderman’s largely successful 2015 campaign to stem the use of on-call shifts by other large retailers like Urban Outfitters and Gap. While, to date, Healey’s office has not initiated any actual enforcement actions against retailers for using on-call shifts, retailers should consider themselves on notice that many states – including Massachusetts – are beginning to crack down on this widespread practice.
Background on On-Call Shifts
Thanks to the proliferation of medical drama television shows like Scrubs, Grey’s Anatomy, and ER, almost everyone is familiar with the concept of being “on-call.” An on-call shift is a shift where the employee, though not required to go into her place of employment, is required to stand by her phone and be ready to go into work if her employer calls her in. This practice is widely used in the medical field, where adequate staffing is difficult for hospitals to plan in advance and necessary to the timely provision of life-saving care.
While most people are probably already familiar with the use of “on-call” shifts in the medical field, some might be surprised to learn that many large, national retail stores commonly assign their employees to “on-call” shifts. Typically, these retailers require their employees to call in one to two hours before the start of their shift to determine whether they are required to come into work. If the employee is not ultimately required to come into work, she receives no compensation for the day of her “on-call” shift. This practice is becoming increasingly common as more employers implement staffing software that can provide up-to-the-minute information on employers’ staffing needs.
In 2015, New York Attorney General Schneiderman sent letters to fourteen different national retailers, requesting information on their use of on-call shifts. These retailers included Abercrombie & Fitch, J. Crew, Gap, Urban Outfitters, Pier 1 Imports, and Bath & Body Works. In response to Schneiderman’s letters, each one of the fourteen retailers either: (1) denied ever using on-call shifts, or (2) agreed to stop using on-call shifts.
In April 2016, Schneiderman sent out another round of letters to retailers, this time joined by Healey and seven other attorneys general. These letters, similar to Schneiderman’s 2015 letters, request information and documents relating to the retailers’ practice of assigning their employees to on-call shifts. Each letter also summarizes some of the potential problems posed by the use of on-call shifts:
[On-call shifts] take a toll on employees. 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 an education, and in general experience higher incidences of adverse health effects, overall stress, and strain on family life than workers who enjoy the stability of knowing their schedules reasonably in advance. “On-call shifts” also interfere with workers’ ability to obtain supplemental employment to ensure financial security for themselves and their families.
The recipients include Aeropostale, American Eagle Outfitters, Coach, David’s Tea, Forever 21, PacSun, and Vans.
This recent round of letters suggests that many states are beginning to take an active stance against the use of on-call shifts. Employers that currently use on-call shifts should be aware that, in the near future, they may face resistance from state agencies. On the other hand, it is important to note that Healey has not taken any formal enforcement actions against any retailer for the use of on-call shifts. Employers should stay tuned-in to this fast-developing legal topic to ensure that they are in compliance with all prevailing workplace requirements.