Legal Briefing: Make The Right Call On On-Call Shifts

Multiple lawsuits have been filed recently in California against retailers including BCBG Max Azria, The Gap Inc. and Forever 21 alleging that they do not pay their employees reporting time pay when they are required to report for on-call shifts but ultimately aren’t put to work or allowed to work. The lawsuits allege that the retailers tell their employees to consider on-call shifts as regular shifts, but that the employees ultimately don’t work the shift and are not paid for their on-call time.

Although it is not required under the federal Fair Labor Standards Act, many states require that nonexempt employees be paid reporting time pay when they are required to report to work but aren’t put to work or work less than their scheduled day’s work. This reporting time pay compensates employees for the time that they are prevented from obtaining supplemental employment, etc. Robinson v. BCBG Max Azria Group LLC, Case No. BC597311, Superior Court of California, County of Los Angeles (Oct. 9, 2015); Kennedy v. Forever 21 Retail Inc., et al., Case No. BC597806, Superior Court of California, County of Los Angeles(Oct. 14, 2015).

Impact: Retailers or other employers using the practice of on-call shifts should carefully review each state’s laws where they do business to determine whether they require payment for such shifts, even if the employee ultimately does not work.