On April 10, 2015, the New York State Office of the Attorney General Eric T. Schneiderman sent letters to 13 major national retailers, requesting detailed information concerning the companies’ New York staffing and scheduling policies and practices.

According to the letters, the Attorney General’s Office “has received reports that a growing number of employers, particularly in the retail industry, require their hourly workers to work what are sometimes known as ‘on-call shifts’ —  that is, requiring their employees to call in to work just a few hours in advance, or the night before, to determine whether the worker needs to appear for work that day or the next. If the employee is told that his or her services are not needed, the employee will receive no pay for that day, despite being required to be available to appear on the job site the next day or even just a few hours later on the same day.” The letter further noted a number of companies in New York State utilize “on-call shifts and require employees to report in some manner, whether by phone, text message, or email, before the designated shift in order to learn whether their services are ultimately needed on-site that day.”

Scheduling presents many unique challenges for retailers who rely on flexible practices and technology in order to respond to a host of unpredictable and often volatile factors, including employee absences, customer traffic, and severe weather. These practices, however, can implicate a variety of wage and hour issues, particularly in states like New York, which requires an employee who reports to work be paid at the basic minimum hourly wage for the lesser of at least four hours, or the number of hours in the employee’s regularly scheduled shift (referred to as “call-in pay”).

The letters went on to request a wide variety of information from the retailers, including how they schedule employees for work, whether they utilize on-call shifts at any New York locations, and whether they have performed any studies on the efficiencies or savings believed to be associated with the use of on-call shifts. The letters also requested copies of the retailers’ wage and hour policies, sample schedules, and time/payroll records for any day in which an employee in New York was paid for less than four hours, among other documentation.

All employers, but particularly those in the retail industry, would be wise to double-check that their scheduling practices and policies comply with all applicable wage and hour laws, as certain states treat employees more favorably than they would otherwise be treated under the federal Fair Labor Standards Act. For example, New York Labor Law, in addition to requiring call-in pay, also requires certain employees who work a spread of hours exceeding 10 hours and/or a split shift to receive an extra one hour’s pay at the basic minimum hourly wage rate.

If you have any questions about how this could impact your business, please contact:

• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Michael S. Katzen (609.986.1319; mkatzen@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.