Paul Tassin  |  September 3, 2015

Category: Labor & Employment

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Woman by the phone waiting for a call - isolated over white backgroundA California worker filed a lawsuit against Victoria’s Secret over the retailer’s practice of having employees be “on call” for shifts for which they wait by the phone to see if they’ll be needed to work.

Plaintiff Mayra C. says her employer, Victoria’s Secret, routinely schedules its workers for 15 to 20 hours’ worth of on call work per week. Workers are required to call the store two hours before the beginning of the shift to confirm whether or not they’re actually needed.

Mayra says Victoria’s Secret’s on call scheduling is difficult to reconcile with the scheduling for her other part-time job, and it makes it impossible to consider attending school at the same time.

Mayra’s attorneys argue for application of a California law that says workers are entitled to be paid if they “report for work” but are then not permitted to work at least half their shift. The law doesn’t say whether “report for work” means the employee must make herself physically present. Mayra’s lawyers say that having to call in before the shift satisfies the “report for work” requirement.

The trial judge hearing Mayra’s on call lawsuit disagreed, holding that the California law requires the employee to be physically present. The judge dismissed Mayra’s case, but he also gave her a chance to appeal to the Ninth Circuit Court of Appeals.

While the nature of some professions like law enforcement and medicine require workers to be on call sometimes, retail employers schedule that way to save money. By telling on call workers not to show up for a shift instead of letting them on the clock for a short time and then sending them home, employers save on labor costs.

Lawyers for Victoria’s Secret estimate that if the company had to pay each on call worker for two hours of work for every scheduled on call shift from 2010 to 2014, it would have cost the company $25.1 million.

But this practice that saves employers money causes a variety of problems for employees. In addition to the problems Mayra described with juggling school and other jobs, workers complain that being on call may require them to schedule child care that they may end up not needing. The unpredictable schedule can also result in a wide variance in take-home pay.

Some workers who might otherwise qualify for income-based government assistance programs can’t apply because they can’t give an accurate measure of their income.

Mayra is not the only person taking action. In April, New York Attorney General Eric Schneiderman requested scheduling practice information from 13 major retailers, including J. Crew, Gap, Target, J.C. Penney, and Abercrombie & Fitch.

Schneiderman told NPR that although New York’s “reporting time” law was written at a time when employees physically showed up to find out whether they would work, the principle stays the same when employees are sent away via phone or text message. New York’s law says that if a worker reports for a shift but is then sent away, that employee is entitled to four hours’ pay.

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