“Call-In” Work Schedules Scrutinized in Victoria’s Secret Class Action

A recently announced class action lawsuit against Victoria’s Secret in California brings to light national concerns about “call-in” work schedules. The suit coincides with an investigation into on-call scheduling in New York by the state attorney general’s office.

Employees who are assigned call-in shifts are not guaranteed any work or pay for that particular day—rather, they are forced to remain available for hours before their shift, and call in to work well in advance to see whether the company needs them to come in that day, often waiting on hold to speak to a supervisor. Counterintuitively, on-call shifts are also typically considered scheduled shifts, meaning that workers can be penalized for arriving late or failing to come in, even though they may have as little as 30 minutes’ notice.

The Victoria’s Secret suit claims that workers who are forced to remain available for on-call shifts are eligible for wage compensation if their shifts are canceled, just like they would be if they physically arrived to work but were sent home. On-call shifts can constitute 50% or more of employees’ weekly hours, so their income varies drastically week-to-week. Most of the time, employees’ unpredictable work schedules also prevent them from taking a second part-time job during their shift windows, since they may be called in at any time.

According to BuzzFeed News, research indicates that national chains can save tens of millions of dollars each year by keeping workers on the hook, ready to come in, and canceling their shifts last minute. The strategy is much more cost-effective than paying workers for partial shifts and sending them home when business is too slow to justify their presence.

The on-call scheduling investigation taking place in New York includes Urban Outfitters and Bath & Body Works as well as Victoria’s Secret. The attorney general’s labor bureau has contacted 13 different retailers operating 27 national chains, which it believes to include uncompensated on-call shifts in their scheduling practices. The debate about the legality of on-call scheduling currently revolves around judicial interpretation of the phrase “report for work.” If employees physically report but are not given work hours for the day, they must, under the law, be compensated. But what about those who expend time and energy outside the work site, making sacrifices to conduct work-related activities?

“If you’ve been published a schedule for your hypothetical call-in shift, if it’s mandatory, not optional, and you had to tailor your life around the shift, yes, you are reporting for work,” said David Leimbach, an attorney representing the Victoria’s Secret employees in their labor practices suit. “When an employee tailors their life around a work schedule, you should adjust their wages if they’re making themselves ready, willing, and able to work.”

Lawyers for Victoria’s Secret estimate that if the chain were required to pay workers just two hours’ worth of wages for every canceled call-in shift between July 2010 and August 2014—just for part-time workers in California—that number would exceed $25.1 million. If restitution is implemented on a national scale, the company, along with other national retailers, may face a collective multi-billion dollar payout to workers who were unjustly denied their wages.