Ashley Milano  |  August 25, 2015

Category: Labor & Employment

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On-call employees are typically required to be available to come in to work if a store is busy, and may not be required to show up at all if business is slow. It has been alleged that many retail companies are failing to pay on-call employees the minimum hours and wages for being on-call, contrary to employment law.

A California lawsuit against Victoria’s Secret and an Attorney General’s investigation in New York may change the practice of unpaid on-call shifts.

Victoria’s Secret’s Employee On-Call Policy

When Mayra Casas worked for Victoria’s Secret, she says she would often be assigned 15-20 hours of on-call shifts a week. She would have to call in two hours before her shift started to see if the store needed her to work or not. If the manager said yes, Casas would get a few hours of work and pay. If in-store traffic was slow and Casas’ shift was cancelled, she would get nothing.

Some weeks, Casas would work all 30 hours scheduled and some weeks, she would only work 10 hours out of the 30 scheduled, making her income fluctuate.

The on-call class action lawsuit claims that not paying employees for canceled on-call shifts violates the state’s reporting time pay law. California’s employment law requires employers to pay employees for at least half of an employee’s scheduled work hours if the employee is sent home early. Casas argues that this law should also apply to on-call shifts.

However, Victoria’s Secret argues that California’s labor law only applies when an employee “reports to work.” Since the employee only calls in and never actually shows up at work if a shift is cancelled, then the employee did not “report to work” and is not owed any pay.

Currently, courts are unclear about whether the phrase “report for work” includes on-call shifts because California’s labor law does not specify. Other similar laws from other states also fail to specify.

The district court judge on the case ruled that “report for work” does require physical attendance at work and dismissed Casas’ case. However, the judge did give Casas leave to appeal the decision to the U.S. Court of Appeals for the 9th Circuit.

On-Call Practices Investigation

As unfair as this practice may sound to employees, scheduling workers for on-call shifts is a very popular practice among many retailers. The practice helps companies save on the cost of paying unneeded employees when store traffic is low, and ensures that managers can call in employees quickly when store traffic is high.

In New York, the Attorney General’s office is investigating 13 large retailers, such as Gap, Target, and Abercrombie and Fitch, over similar on-call shift practices. The office believes these retailers may be violating the state’s reporting time pay laws.

Federal law requires that employees are paid for time that is under the control of the employer and that benefits the employer. If the employee does not have the ability to spend his or her time however he or she wants because of employment duties, the employee must be paid for that time.

If you worked at a California retail store that used an on-call/call-in scheduling policy, you may have a legal claim.

 

Join a Free California Overtime, Wage & Hour Class Action Lawsuit Investigation

If you were forced to work off the clock or without overtime pay in California within the past 2 to 3 years, you have rights – and you don’t have to take on the company alone.

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