What You Need to Know About Erratic Scheduling:
5 trends in unpredictable retail scheduling
Scheduling practices affect how much retail workers take home in pay, whether or not they receive health benefits, and their ability to balance life and work. According to our recent report, “Discounted Jobs: How Retailers Sell Workers Short,” only 17 percent of retail workers surveyed have a set schedule with the majority of workers increasingly facing unpredictable hours, on-call shifts, call-in pay violations, penalties for scheduling requests and benefits avoidance through “legal misclassification.”, The share of part-time retail workers who are involuntarily kept from full-time status has nearly doubled since 2006, and given new abusive scheduling practices, this is not a surprise. Unpredictable schedules make it impossible to earn a steady paycheck and complicate planning for other responsibilities like school and childcare.
The trends in retail scheduling range from inconvenient to abusive to downright illegal. Illegal means a violation of state or federal employment law. Abusive practices fall short of illegality, but can be defined as practices which have a one-sided benefit for the employer only. Inconvenient scheduling practices make work-life balance difficult for frontline retail workers and invite management favoritism.
National retailers are increasingly using these five “just-in-time” scheduling practices:
1. Sent home early without shift (or “call-in”) pay—Illegal
Managers will send associates home early – before the end of their scheduled shift – if they feel they are over-staffed or over-budget. Over 70 percent of workers surveyed in NYC by the Retail Action Project who reported being sent home early failed to received the legally mandated “call-in” pay. The call-in pay law in New York State requires retail employers to pay their workers at the minimum wage for either 4 hours or the full extent of the scheduled shift, whichever is less. Since the shortest shifts we discovered were 4 to 5 hours, in most cases retail workers are due 4 hours pay at the minimum wage – even if they don’t work the entire 4 hours.
2. Hours as the new bonus—Abusive
With part-time workforce growing, retail managers are increasingly using the scheduling of hours as an incentive to increase the pace of selling by sales associates – rewarding or punishing workers with hours. Associates are now competing to make sales not to earn commission but to get scheduled for more hours. Indeed, “getting hours” has become the new bonus. Today, there is absolutely no guarantee for a set number of hours for part-time or full-time workers. Yet, retail workers are working at the whim of market fluctuations with unpredictable fluctuations in weekly hours, making budgeting and planning a real challenge.
3. Underscheduling as a benefit (UI) avoidance scheme—Possibly illegal
This doesn’t make much sense if the management strategy is to retain employees to minimize turnover costs. But what if it’s part of an intentional strategy to avoid unemployment claims and higher experience rating? 
The median hourly wage of a part-time retail worker in NYC is $9.25. One six-hour shift per week amounts to a monthly pay of $240.50. Yet on-call shifts (see trend #4) and employers’ expectation of “open availability” limit the ability of this hypothetical worker to take on a second part-time job. With such meager pay, this worker may voluntarily leave to search for a single job with more hours, meaning that the company will avoid an unemployment claim and a higher experience rating. As a strategy to avoid participation in unemployment insurance, these practices border on illegality.
4. “On-Call” Shifts—Inconvenient & Abusive
With retailers drive for flexibility, “on-call” scheduling is becoming a common practice in the industry. On-call shifts mean the scheduled employee is required to call the store, usually 2 hours in advance of the shift start time, to find out if they are needed that day. This day-of notification makes it extremely difficult to prepare work and plan for other life activities.
On-call scheduling also leads to significant problems with underemployment. It’s not unusual for a retail worker to have only one guaranteed shift in a week and two to three on-call shifts. Therefore the employee may call in three times that week and not get a “yes” on any of those days. While there is no guarantee of a shift, the worker is expected to have that day clear, preventing them from engaging in other gainful employment. Legal analysis of “waiting pay” (as defined by the Fair Labor Standards Act – FLSA), hasn’t caught up with the brave new world of on-call scheduling, but these unpaid waiting days may run afoul of basic FLSA protections.
5. Changes after the schedule has been printed—Inconvenient
Many workers report only receiving a posted schedule 2-3 days before the work week begins. But what if the schedule is changed after the work week begins?
National retailers have adopted computer software which allows employees to go online and check their schedule. This may seem like a convenience, but some workers with limited internet access might prefer a paper that is physically posted. Workers report that managers often enter changes into the computer software after they’ve already checked the initial posting and made plans for that week. Two or three days notice is bad enough, but mid-week changes make work-life balancing impossible.
* The analysis is based upon three sources: membership organizing and communication at the Retail Action Project; a survey of 500 workers conducted for the Discounted Jobs report, recently published by RAP; a of 5 small focus groups which elicited comments on specific scheduling practices.
 Source: Bureau of Labor Statistics (BLS) Current Population Survey.
 NYS employers make payments into the unemployment insurance trust fund based upon a variable tax rate. The rate is determined in part by the employer’s “experience rating”— an employer whose former employees have claimed UI benefits is likely to have a higher UI tax rate because of this experience rating system. This creates an incentive for employers to deny unemployment claims or contest claims to avoid a negative experience rating.