Is On Call Scheduling Legal in California?

On call scheduling is an increasingly common way for California retailers to schedule employees, but many employees believe that this method is unfair, allowing retailers to take advantage of their workers.

Using an on call scheduling system allows employers to cancel shifts without pay, sending staff home if they are deemed unnecessary on a slow work day.

Many retailers take advantage of this system, overscheduling employees through the on call scheduling system and sending them home without pay.

Not only does on call scheduling mean that California employees are not paid for all the hours they are scheduled to work, which can lead to financial difficulties, they are also required to be free and nearby when they are on call, even when they may not even be asked to come in to work.

Employees and employers are not the only ones involved in the debate over the fairness of on call scheduling. The Department of Labor Wage and Hour Division, which created and enforces the Fair Labor Standards Act (FLSA), is also involved in this conflict.

These parties offer differing opinions on the definitions of important terms like on call work, on call scheduling, and on call pay—different interpretations of which could lead to significant changes in policy.

FLSA Background

The Fair Labor Standards Act regulates the fair treatment of employees. Employers that have violated FLSA in some way, such as unpaid wages or unpaid overtime, can be sued under FLSA rules.

Unpaid wage lawsuits are often more clear, as the definitions are more straightforward and there is considerable precedent for these kinds of lawsuits. However, the legality of on call scheduling is still in debate.

On call scheduling is a complicated aspect of wage and hour laws. The general rule for payment of wages is, of course, that employees are simply paid for the work they perform. However, in some cases, employees are also paid for the time they spend waiting to perform that work.

An illustrative example of this kind of payment is firefighters. Firefighters do not spend all of their work hours fighting fires, but are consistently available during these times to perform this work, which allows them to be paid for the wait time as well as hours actually working.

Determining whether or not on call work should be paid involves a few basic problems. These include:

• Is the employee required to remain on work premises?
• If allowed off premises, how far may the employee go during on call work hours? Are there excessive restrictions placed on how far the employee can go?
• Is the employee required to do more than simply leave their contact information with their employer?
• How often, for on call employees, is the employee actually called in to work?
• Is there a specific time for employees to receive calls, and is the amount of time in which they have to respond restrictive?
• Can an on call work employee trade off their on call shift with another employee?
• While on call, can the employee freely use their time for personal activities, or are they unduly restricted in their actions during on call work hours?

California employees are governed under federal and California state laws, which may sometimes conflict, sometimes making the situation less clear with respect to the legality of on call work.

On Call Scheduling Lawsuits

On call scheduling practices used for employees can make it impossible for employees to bring in even a steady, minimum-wage paycheck. For instance, if they are required to be available full time due to on call scheduling, but actually work only part time, they are often unable to take another part time job because of their availability.

These practices also complicate schooling, childcare, and social lives.

If you have worked for an California employee that may have abused the on call scheduling system or otherwise violated FLSA, you may be able to file an on call scheduling lawsuit.