Several National Retailers Receive Requests for Information from New York Attorney General On Practice of “On-Call Shifts”

In what must have been a bad start to the day, more than 12 of the nation’s retailers recently received requests for information from the New York Attorney General Eric Schneiderman inquiring into their use of “on-call shifts.” The AG’s letter explains that “on-call shifts” require 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 not needed, he or she will receive no pay for that day, despite being required to be available.

AG Schneiderman’s requests make clear his belief that the “on-call” practice severely disadvantages low-wage workers. It is therefore not difficult to imagine that other state Attorneys General who are concerned about income inequality may soon follow suit.

The primary basis for AG Schneiderman’s initiative appears to be the apparent unfairness of the “on-call” practice. AG Schneiderman does cite a relevant New York statute, 12 NYCRR 142-2.3, that provides:

An 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

Whether this provision will apply, will likely turn on the facts of each program and the specific language of any law or regulation that might apply. The New York requests for information clearly take the position that the word  “report” does not require the employee to be at the employer’s work site but applies if the employee “reports” by telephone, text or email. Massachusetts for example seems to more clearly require the employee’s physical presence at the work site to trigger the right to compensation. 454 CMR 27.04.

Responses to the New York requests were due on May 4. We should soon learn whether the recipients of these requests employ the “on-call” practice and, if so, whether they are inclined adopt changes. We will also learn whether other states Attorneys General initiate similar inquiries.

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