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“On Call” Shifts Still In the Hot Seat in Massachusetts

The Massachusetts Attorney General’s Office Fair Labor Division has joined a multistate effort questioning retail stores’ use of “on call” shifts.  Last week, the Massachusetts AG’s Office teamed up with its counterparts from New York, California, Connecticut, the District of Columbia, Illinois, Maryland, Minnesota, and Rhode Island to send requests for information regarding “on call” shifts to 15 national retailers with locations in Massachusetts.  The letters (see an example here) cite to concerns over the toll that “on call” shifts can have on employees, including difficulty making reliable child-care arrangements and obstacles to pursuing an education or a second job.

“On call” shifts have become more popular in recent years, especially in the fast food and retail industries, as employers implement “just-in-time” scheduling plans to keep labor costs down.  Under these plans, an employee is often required to contact his or her employer an hour or two before a scheduled shift to confirm whether he or she must actually work the shift.  If he or she is not needed for the shift, no wages are paid.

Massachusetts State Representative Sean Garballey and State Senator Kenneth Donnelly introduced bills in the House and Senate in January of last year to address some of the concerns about on call shifts.  The House bill, in part, would require all Massachusetts employers to provide 21 days advance notice to employees of scheduling and, when an employer cancels or changes a shift, the employer would be required to pay one or four hours of “predictability pay,” in addition to the wages paid for hours worked, depending upon the circumstances.  The Senate bill, for its part, would apply only to fast food and retail establishments that employ at least 75 people.  It would provide 14 days advance notice to employees of scheduling and, when an employer cancels or changes a shift, the employer would be on the hook for anywhere from one to four hours of additional pay.  A hearing was held on this proposed legislation last fall, in which business groups voiced strong opposition, claiming that the burdens of the law are too much for small businesses to shoulder, especially following so closely on the heels on the earned sick leave law and increased minimum wage.  Since then, there’s been little to report.

Similar provisions were advanced last year as part of a ballot initiative in Massachusetts.  Although the Attorney General certified the petition, it was not supported by sufficient signatures to proceed.

But this issue has not gone away, as evidenced by the Attorney General’s recent inquiry.  Although no Massachusetts law now exists barring or limiting on call shifts, seemingly the AG’s Office is preparing to exercise its jurisdiction in the event that these fair scheduling bills become law.

Although more likely (at least for now) to impact only large retailers and fast food establishments, all employers utilizing “on call” shifts should be mindful that this practice is on the legislative chopping block and should assess the cost-efficiencies of continuing to use just-in-time scheduling.  We’ll continue to monitor this legislation and the AG’s efforts.

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Erin Horton