On-call scheduling is on the decline as several state governments and municipalities put pressure on retailers to compensate employees for being “on-call.” In a recent interview with HREOnline, Jackson Walker partner John Jansonius discussed what the potential end of on-call scheduling means for retailers, as the practice has been instrumental in helping companies save their margins.
The issue revolves around two main questions, the first relating to laws in a few states requiring a minimum number of hours of pay for reporting to work. “The argument goes that, if you call in to find out if you are going to work that day, you are, in effect, reporting to work and therefore should be entitled to minimum pay,” John told HREOnline. Though John sees this as a “flimsy” argument, it is the basis for the idea that on-call scheduling is an unfair labor practice.
Second, does on-call scheduling represent a shift of business risk from the employer to the employee? John noted that on-call scheduling is “tough on employees,” in contrast with the benefits the practice provides for employers. On-call scheduling results in unstable income for employees as their opportunities to make money ebb and flow with the needs of the employer.
As these issues leave employers vulnerable to legal trouble in a host of states, John told HREOnline that emerging technology might resolve the on-call scheduling issue. “The one alternative which is perhaps in its infancy … is the equivalent of the ridesharing model, where companies have pools of potential employees and they can in effect summon them the way you could an Uber driver.” Though there may be issues with this employee-sharing model, John explained that it “has considerably more potential value” than on-call staffing.
Even though there are no laws that explicitly prohibit on-call staffing, John argued that companies should stay aware of the potential liabilities surrounding the practice. According to John, “if you are an employer that engages in on-call staffing and you have competitors in the same market that don’t, that . . . would be something that a union could effectively exploit.”
About John Jansonius
For over 36 years, John V. Jansonius has advised clients on labor and employment law matters. He has served as lead counsel on several employment litigation cases, and frequently works with corporate counsel, executives and human resources professionals to minimize risk in employee relations issues. In 2016, he was ranked in the prestigious Chambers USA Leading Labor and Employment Lawyers in Texas, and was named Lawyer of the year by The Best Lawyers in America© (Woodward/White Inc.) in 2010 and 2014.