The Massachusetts Attorney General’s Office, along with several other states, is challenging retail stores’ use of “on call” shifts. This month, Massachusetts joined with California, Connecticut, the District of Columbia, Illinois, Maryland, Minnesota, New York and Rhode Island to send requests for information regarding the use of “on call” shifts to 15 national retailers that have locations in Massachusetts (click here for the AG’s Press Release). These retailers include major household names, such as American Eagle Outfitters, Coach, Carter’s, Disney Stores, Forever 21, and Payless, to name a few.
According to Attorney General Maura Healey, employees assigned to on-call shifts are typically required to contact their employer an hour or two before a scheduled shift to learn whether they must work the shift. If the worker learns that his or her services are not required, the worker does not get paid, even though the employee was required to be available to work, to forgo other job and educational opportunities, and to make arrangements for child care or other person responsibilities. According to the letter sent to retailers, “[s]uch unpredictable work schedules take a toll on employees.” The letter cites concerns that workers who must be “on call” have difficulty making reliable childcare and eldercare 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 with a stable schedule set reasonably in advance.
In 2015, after a similar inquiry by the New York Attorney General, several major retailers including Abercrombie & Fitch, Gap, J.Crew, Bath & Body Works, and Victoria’s Secret agreed to end the practice.
According to the Attorney General’s Office, retail salesperson is the most common occupation in the United States, and Massachusetts has over 100,000 retail sales jobs. Entry level retail workers earn, on average, $1,460/month or $17,520/year. And although men and women are nearly evenly represented in retail jobs, women are concentrated in low-wage retail jobs.
For employers, the issue is not just one of ensuring employees’ well-being. Many states have reporting pay or call-in pay laws of their own that employers must follow. For example, New York’s “call in pay” regulation 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.” 12 NYCRR 142-2.3.
Currently, Massachusetts does not have laws prohibiting the use of these types of “on call” shifts. The Massachusetts regulation, 454 CMR 27.04(2) provides that “[a]ll on-call time is compensable working time unless the employee is not required to be at the work site or another location, and is effectively free to use his or her time for his or her own purposes” (emphasis added). An interesting issue is whether the employee who is waiting to hear whether he or she must report to work is effectively free to use his or her time for his or her own purposes.
Last year, a bill was introduced in the House that would require all employers to provide 21 days advance notice to employees of their schedule, and when an employer changes or cancels a shift, the employer would be required to pay one to four hours of “predictability pay,” in addition to the wages paid for hours worked. The Senate bill, which would apply only to fast food and retail establishments with at least 75 employees, would likewise require 14 days advance notice to employees of their schedule, and if a shift is changed or canceled, the employer would be responsible for one to four hours of additional pay.
While not current law, Massachusetts employers should consider the implications and realities should these bills, or similar bills in the future, become law, especially in light of the Massachusetts Attorney General’s Office recent inquiry and critique of “on call” shifts.