Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Retail’

Gap Will End Scheduling Practices That Wreak Havoc On Workers’ Lives

Sunday, August 30th, 2015

Bryce CovertIn a blog post on Wednesday, Andi Owen, global president for Banana Republic at Gap Inc., announced that the company will end the practice of on-call scheduling and commit to giving employees at least 10 days advance notice of their schedules.

All five of its brands will phase out on-call scheduling, in which employees are required to be available to work on a given day but not guaranteed that they will actually be asked to come in, by the end of September. They will also all provide workers with at least 10 to 14 days notice of when they’ll be working by early 2016.

The company says the changes come from an evaluation it’s conducted over the last year to improve its scheduling practices along with a pilot it launched in July of last year with the help of Professor Joan Williams of UC Hastings’ College of Worklife Law. But it also comes after New York Attorney General Eric Schneiderman began an investigation into the scheduling practices of 13 large retailers and whether they violated a New York state law and sent them all a letter. The investigation had already produced results: earlier this month, Abercrombie & Fitch announced it would end on-call scheduling in New York stores by the end of the year. Those employees will also get their schedules at least a week in advance. Victoria’s Secret, which also received a letter from Schneiderman’s office, has also ended on-call shifts.

Other brands received the letter but haven’t made changes yet, including Ann Inc. (owner of Ann Taylor), Burlington Stores, Crocs, J.C. Penney, J. Crew, Sears, Target, TJX (owner of TJ Maxx and Marshall’s), Urban Outfitters, and Williams-Sonoma.

Starbucks’s scheduling practices also came under fire in a New York Times story last year, after which the company took quick action to end the practice of “clopening,” or shifts where employees close stores late at night and then have to come back in a few hours later to open them for the next day, and post schedules at least a week in advance.

But overall, employees often have to deal with erratic and difficult schedules. At least 17 percent of the American workforce has an irregular schedule, including on-call shifts, split shifts (two different shifts in one day), or rotating ones, although that is likely an undercount. Nearly half of part-time workers and just under 40 percent of full-time workers don’t find out their schedules until a week ahead or less. It’s concentrated in retail, where erratic schedules impact 27 percent of the workforce. One survey of retail workers in New York City found that 40 percent didn’t have a set minimum of hours they worked week to week and a quarter had on-call shifts.

Some lawmakers have looked at ways to address these problems. Earlier this year, Democratic Sens. Elizabeth Warren (MA), Patty Murray (WA), and Chris Murphy (CT) with Reps. Rosa DeLauro (CT) and Bobby Scott (VA) re-introduced the Schedules that Work Act, which requires at least two weeks’ notice of schedules and pay for workers who get sent home before the end of their shifts or are on call but not asked to work. In San Francisco, legislation actually passed to require retail chains to give workers at least two weeks’ notice of schedules and pay employees for on call shifts that get canceled. Similar legislation has been proposed in Minneapolis and Washington, D.C.

Gap also announced that it was raising its minimum pay to at least $10 an hour early last year, a move that has since been followed by a number of large retailers.

This blog originally appeared at ThinkProgress.org on August 27, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Capturing Wages for Off-The-Clock Work in California Retail Stores

Tuesday, June 15th, 2010

W-F-BlogDuring the past several years, we have represented employees of several clothing retailers, including sales associates working for Polo Ralph Lauren, Gap and Banana Republic, and Chico’s in California-wide class action cases. All of these cases were prosecuted under California labor law. Our most recent employment class action against Polo Ralph Lauren challenged its failure to pay employees for the time they spent waiting for and undergoing “bag checks” or internal theft prevention inspections at the end of their shifts. Our clients alleged they sometimes had to wait for up to a half an hour for managers to perform bag checks and let them leave the stores. They alleged that under California law this off-the-clock time was “work” and that they were entitled to wages for the time they spent in their stores between “clock out and walk out.”

Bag Checks Are Common In the Retail Setting

In the retail store environment, many companies require employees to undergo bag check inspections before they can leave their stores for breaks or at the end of their shifts. According to industry experts, bag checks are a loss prevention tool used by retailers to discourage internal theft. These bag checks are permitted under California law and are generally a mandatory condition of employment for certain types of retail workers. The problem arises when employees are required to wait for their managers or other authorized personnel to perform bag checks on them after they have clocked out and are no longer being paid for their time. Is this waiting time compensable under California, however?

Under California Law, an Employer’s Control Over the Worker Is Key

With certain limited exceptions, hourly employees in California are entitled to be paid for all the time they are “subject to the control of an employer.” Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal. App. 4th 968. This “includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Industrial Welfare Commission Order 7-2001. In the Polo case, our clients alleged they had been locked inside their stores after they had clocked out at the end of their shifts. From our clients’ perspective, physical confinement plainly satisfied the “control” requirement under California law.

The Federal De Minimis Defense

Polo defended the claims by relying on a federal legal doctrine called the de minimis defense. The de minimis defense arose out of the Portal-to-Portal Act (a 1947 amendment to the federal Fair Labor Standards Act). 29 U.S.C. § 254(a), a provision of the Fair Labor Standards Act, provides that certain activities performed before (preliminary) or after (postliminary) the worker’s principal activities are not compensable.

Under the Fair Labor Standards Act, principle activities include any work of consequence performed for an employer, no matter when the work is performed. If the activity is necessary to the business and is performed by the employees for the primary benefit of the employer, it is generally compensable time, unless it is deemed to be de minimis. It is de minimis when the unpaid time is short, occurs infrequently and is difficult for the employer to track. Lindow v. United States, 738 F. 2d 1057 (9th Cir. 1984)

As the United States Supreme Court explained more than 60 years ago,

When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

Federal Courts, including the Ninth Circuit, have developed a three-part test to evaluate when unpaid work time can be described as de minimis. In Lindow v. United States, (9th Cir. 1984), the Ninth Circuit Court of Appeals explained that to excuse an employer from its wage obligations under the de minimis defense, the courts must evaluate: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.”

Thus, if the work time is short, occurs only on rare occasion and is very hard to track, under federal law the employer can essentially ignore it.

But, Does the De Minimis Defense Apply Under California Law?

One of the central legal issues in the Polo case was whether the federal de minimis exception applied to wage and hour claims under California law. We argued that applying the de minimis defense to our clients’ off-the-clock claims would undermine California’s “subject to the control” test. In other words, if employees under California law are entitled to be paid for all time they are under the employer’s control, it does not matter whether the time is preliminary, postliminary or de minimis. The only thing that matters is whether the worker is under the employer’s control. If control is present, then the worker is entitled to be paid for the time they are under that control.

While the de minimis defense has not been tested by any California appellate court, one thing is clear: “The federal authorities are of little if any assistance in construing state regulations which provide greater protection to workers.” Bono Enterprises, Inc. v. Bradshaw, 32 Cal. App. 4th 968 (1995). This distinction is of great benefit to California workers and is one reason most wage and hour cases in California are prosecuted under California, and not federal, law.

So, does the de minimis defense apply to wage and hour claims under more employee-friendly California law? We still do not know. Just days before the trial court in the Polo class action was scheduled to decide whether to apply the federal de minimis defense to our clients’ claims, the case settled for $4 million.

Eventually, of course, a California appellate court will be asked to decide whether the de minimis defense applies to California off-the-clock claims. For now, California law remains unclear. What if the de minimis defense is deemed to apply to California claims? If workers can establish that the off-the-clock work occurred regularly, amounted to substantial time during the course of employment and that it would have been feasible for the employer to track the time, the de minimis defense should not have a substantial impact on their right to be paid wages for all the time they are subject to their employer’s control.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

We Need to Combat Workplace Violence

Monday, February 15th, 2010

Image: Dick MeisterOrganized labor and its allies are rightly alarmed over the high incidence of on-the-job accidents that have killed or maimed many thousands of workers. But they haven’t forgotten – nor should we forget – the on-the-job violence that also afflicts many thousands.

Consider this: Every year, almost two million American men and women are the victims of violent crime at their workplaces. That often forces the victims to stay off work for a week or more and costs their employers more than $60 billion a year in lost productivity.

These crimes are the tenth leading cause of all workplace injuries. They range from murder to verbal or written abuse and threatening behavior and harassment, including bullying by employers and supervisors.

Women have been particularly victimized. At least 30,000 a year are raped or otherwise sexually assaulted while on the job. The actual total is undoubtedly much higher, since it’s estimated that only about one-fourth of such crimes are reported to the police.

Estimates are that more than 900,000 of all on-the-job crimes go unreported yearly, including a large percentage of what’s thought to be some 13,000 cases annually that involve boyfriends or husbands attacking women at their workplaces.

The Retail, Wholesale & Department Store Union (RWDSU), which represents many of the victimized workers, cites that as an example of the job violence problem that is often distorted by media coverage that “would lead us to believe that most workplace violence involves worker against worker situations.”

The union says that has focused many employers “on identifying troubled employees or disgruntled workers who might turn into violent predators at a moment’s notice. But in fact, 62 percent of all violence at worksites is caused by outsiders.”

As you might expect, those most vulnerable to the violence are workers who exchange money with the public, deliver passengers, goods or services, work alone or in small groups during late night or early morning hours in high-crime areas or wherever they have extensive contact with the public.

That includes police, security guards, water meter readers and other utility workers, telephone and cable TV installers, letter carriers, taxi drivers, flight attendants, probation officers and teachers. Convenience store clerks and other retail workers account for fully one-fifth of the victims.

The American Federation of Teachers is so concerned that it has provided each of its 1.4 million members a $100,000 life insurance policy payable if the teacher dies as the result of workplace violence.

The major violence victims also include health care and social service workers such as visiting nurses, and employees of nursing homes, psychiatric facilities and prisons. They suffer two-thirds of all physical assaults. Many of the victims regularly deal with volatile, abusive and dangerous clients, often alone because of the understaffing that’s become all too common.

It could get even worse, at least for some workers. The RWDSU warns that today’s troubled economic times create additional threats. The danger is especially great for retail workers whose stores are likely to face increased incidents of theft, some involving gun-wielding robbers.

The RWDSU and other unions have been pushing for recognition of workplace violence as an occupational as well as criminal justice issue. That would put it under the purview of the federal Occupational Safety and Health Administration (OSHA) and state job safety agencies.

The federal and state agencies could then issue enforceable regulations designed to lessen the on-the-job dangers of violence, as they do for other hazardous working conditions. A few states do that already, but only for a very limited number of industries.

OSHA has issued guidelines for workers in late-night retail jobs, cab drivers and some health care workers, but the guidelines are strictly voluntary. Although the unions’ top priority is for legally binding regulations, they also are pressing employers to meanwhile voluntarily implement violence-prevention programs.

Currently, only about one-fourth of them have such programs or any guidelines at all. The RWDSU’s Health and Safety Department is offering to help the other employers develop programs.

We have federal and state standards, laws and regulations designed to protect working Americans from many of the serious on-the-job hazards they face daily. Yet we have generally failed to lay down firm guidelines for protecting workers from the workplace violence that’s one of the most dangerous hazards of all.

*This post originally appeared in Truth Out on February 11, 2010. Reprinted with permission from the author.

About the Author: Dick Meister is a former labor correspondent of the San Francisco Chronicle and has covered labor and politics for a half-century as a newspaper, radio, television and online reporter, editor and commentator.

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