Whether it's called standby, on-call, surprise, or predictive scheduling, there's one thing for certain: it doesn't matter what it's called—it's an unfair employment practice for hourly workers and one that courts across the country have found problematic if not illegal. Let's be clear: this overbearing practice negatively affects hourly employees in the retail and food service industries. In other professions (including doctors, nurses, firefighters, etc.) it's a perfectly acceptable employment practice — and in many cases a necessary public service. But outside of these examples, on-call scheduling is overly restrictive and demonstrably unnecessary. A surgeon or IT specialist on call? Of course—but there is nothing inherent in an industry that would require a cashier or fry cook to be “on call.” This one-sided practice also limits the worker from securing other valuable employment opportunities — especially in a California where the cost of living is very high. In fact, employers who engage in these practices can face severe penalties and expose themselves to lawsuits.
What is “On-Call” Scheduling?
On-call shifts are those in which workers are notified and/or required to call in the night before — sometimes just an hour or two prior to starting — to find out if they're actually working their scheduled hours. Regarding unfair scheduling practices, the nonpartisan and nonprofit Economic Policy Institute (“EPI”) reports that, “Schedules are provided — and frequently changed — with little to no advance notice, sometimes requiring employees to remain ‘on call' to come to work at the drop of a hat.”
Harsh Challenges for Hourly Workers
On-call scheduling has become commonplace and creates harsh challenges for hourly workers. When an employee is required to remain “on call,” EPI emphasizes that this creates an environment in which the employee is unfairly compelled and pressured to maintain “open availability” for the entire time the business is open, “giving them little input into the days and times they will work.” As a result, these one-sided and opportunistic employment policies create financial hardships as well as unreasonable obstacles for hourly workers. “Not only do fluctuating schedules wreak havoc with tight household budgets,” writes Peter Szekely for Reuters, “they make it difficult to make appointments, arrange child care and plan family time, workers point out.” EPI confirms that, “Volatile hours not only mean volatile incomes, but add to the strain working families face.” They stress the difficulty individuals have in holding down a second job or pursuing other career opportunities. More than difficult, many parents find it next to impossible to secure reliable and safe childcare. EPI concluded that erratic work schedules “result in a host of serious problems for working people and their families.”
New boss same as the old boss
These practices are not new. Employers began engaging in on-call scheduling nearly fifty years ago. University of Chicago Associate Professor Susan Lambert points out that, “Variable scheduling began cropping up in the 1970s as companies sought to maximize profits to better attract investors.” Lambert stresses that businesses zero in on slashing their labor budgets, which “puts enormous pressure on managers to really keep close track of how many hours you're using and how sales are going.”
Flash-forward to right now. With advanced technology many companies have the ability “to track sales and customer flows with precise detail,” according to EPI. This allows employers to “use algorithms to automatically set workers' schedules based on predicted customer traffic, often on an hourly basis.” Almost fifty years later, this scheduling practice has evolved into a grossly biased reality for many current workers.
California Shift Workers are Protected
Good news for California residents: the courts have upheld some of the strongest employee protections in the country as evidenced by the landmark case Ward v. Tilly's, Inc. In this seminal case, Tillys, the retail clothing chain, required their hourly workers to check in two hours prior to their on-call shift to see if they were working. Tillys did not pay their employees for their on-call time (as well as their shift) if they didn't have to work. One of their employees, Skyler Ward, decided to challenge this practice in court, based on the state's Wage Order 7, which stipulates that employers must pay their nonexempt retail employees for reporting to work (including by phone) if one of these following guidelines are true:
- An employee is required to report for work and does report, but is not put to work or is furnished less than half of their usual or scheduled day's work
- An employee is required to report for work a second time in any one workday and is furnished less than two hours of work on the second reporting (for example: a regular shift and an on-call shift)
The California Court of Appeal found that under Wage Order 7, Tillys owed Ms. Ward reporting time pay while she was “on-call.” In finding in favor of Ms. Ward, the Court of Appeal wrote “that on-call shifts burdened employees, who cannot take other jobs, go to school, or make social plans during on-call shifts — but who nonetheless received no compensation from Tilly's unless they ultimately are called in to work.” The court made it clear that the Wage Order's protection of “reporting time” compensation was designed to prevent the exact type of exploitation of employees that Tillys — and other employers — were engaged in. To remain compliant with California's wage laws, employers have two choices: ensure their scheduling systems are compliant with both the letter and spirit of the court's ruling in Ward, or pay workers for their on-call shifts when the employee calls in or reports.
COVID-19 Pandemic and “On-Call” Scheduling
The economic devastation of the COVID-19 pandemic knocked business owners back on their heels, especially in hard hit states like California. According to the Society of Human Resource Management, many frontline industries were desperate to implement cost-cutting measures that forced them to “shut down or drastically alter employees' schedules.” This resulted with employers aggressively changing their static scheduling to more on-call and shift programs. But regardless of COVID, employment laws remain intact, including California's comprehensive statutes protecting employee rights. There's no disputing that employers have encountered severe economic challenges during the pandemic; however, it was not a license to disregard the laws and guidelines implemented to guarantee workers full compensation for all hours dedicated to their employer. You're legally entitled to stable and predictable work hours. Individuals working on-call should be paid accordingly. Lawyers for Employee & Consumer Rights can assist in making that happen.