Regulators are investigating the employment practices of 15 retailers - including Forever 21, BCBG Max Azria, Aeropostale, and Uniqlo, among others – in connection with controversial on-call scheduling. A probe by several states has highlighted concerns over retail workers' shifts being canceled with little notice and could help convince lawmakers to embrace proposals that would require employers to post schedules weeks ahead of time, advocates said.
The attorneys general of eight states and Washington D.C. on Tuesday sent letters to 15 retailers, including Aeropostale, Payless and Coach, asking whether and how they use so-called on-call scheduling. It's a practice used by some retailers and other businesses in which workers must call their employers to check if they are needed for scheduled shifts and are not paid if their hours are cut.
The officials said they were concerned about workers' well-being, since on-call shifts can lead to smaller paychecks and make it difficult to plan child care, work a second job or take classes.
The move came after New York Attorney General Eric Schneiderman, who also signed Tuesday's letters, launched an investigation into on-call scheduling in April 2015. Within months, several retailers targeted by his office, including Gap Inc and Bath & Body Works, announced they were ending the practice, though some said they were considering the change before Schneiderman acted.
Even if the inquiries don't lead to legal action against the retailers, they will likely pressure more companies to end on-call scheduling, according to organizers with workers' rights groups and unions including the AFL-CIO. They could also convince some lawmakers to back scheduling proposals that have been introduced in at least a dozen states and cities, they said. The bills generally would require employers to post schedules weeks in advance and pay workers whose shifts are canceled or who are called in on short notice.
"(The attorney general investigations) show how serious of an issue this is, and it's just inevitable that other elected officials will follow their lead," said Ari Schwartz of nonprofit Jobs With Justice, the lead organizer of a campaign to pass a scheduling law in Washington, D.C.
Jason Brewer, senior vice president of the Retail Industry Leaders Association, agreed that the state inquiries would put a spotlight on the proposed laws, which his group opposes. Most large retailers have abandoned or never used on-call scheduling, he said, and the issue is a "red herring" being used to push laws that would inhibit employers' flexibility and force them to reject workers' frequent, last-minute requests to change their hours.
"It's not clear to me why (the attorneys general) are asking about a practice that most retailers have done away with," Brewer said, "but it drives these restrictive scheduling laws all over the country."
San Francisco in 2014 became the first locale to pass a law requiring employers to post schedules two weeks in advance. The D.C. proposal and bills in Seattle, Massachusetts, New York and elsewhere are similar, with some requiring three weeks' notice. Many would also require employers to give existing employees more hours before hiring additional part-time workers.
Schwartz and other advocates of scheduling laws said they expected the Washington D.C. bill to be the next to come up for a vote, potentially in the fall.
At least eight states, including California and New York, have laws requiring that employees be compensated if they report for work and are sent home, but it is not clear if those apply to on-call scheduling since workers do not have to actually show up.
Employers and plaintiffs' lawyers are watching a series of pending class actions against retailers including Abercrombie & Fitch Stores Inc, Pacific Sunwear and Forever 21 that claim on-call scheduling violates the existing laws.
The 9th U.S. Circuit Court of Appeals is expected to rule on the issue later this year in a lawsuit against Victoria's Secret. A federal judge in 2014 said California's law applied only to employees who come in to work and dismissed claims involving on-call scheduling.