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Retailers Face Flood of Class Actions Related to “Off the Clock” Work

August 16, 2018

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“Off the clock” work may prove costly, as retailers battle a flood of putative class actions based on claims that employees were not compensated for required work duties.

Recently, the parties in Samantha Jones v. Abercrombie & Fitch Trading Co. filed a joint motion seeking preliminary approval of a class action settlement for $9.6 million.  The plaintiffs alleged that the retailer failed to compensate them for time employees spent calling in to the stores. California law requires employers to pay the equivalent of at least two hours of work to employees who report to work.  Class counsel argued the employees effectively reported to work when the retailer required the employees to call ahead of their scheduled shifts.

Abercrombie argued employees had no private right to bring their claims for reporting pay time claims under either PAGA or the Unfair Competition Law.  Abercrombie also disputed class certification, on the grounds the employees’ practice of calling in ahead of their scheduled shifts varied greatly from store to store.

The class includes 61,500 of the retailer’s former and current employees.  If approved, each class member will recover approximately $130.

The proposed settlement comes as no surprise. Retailers such as Victoria’s Secret and Pier1 settled similar claims for over $12 million and $3 million, respectively, and have thereafter abandoned call-in practices.

The Ninth Circuit is currently considering whether to reject similar putative class claims in Herrera v. Zumiez, Inc. Abercrombie filed an amicus brief in support of Zumiez to bolster management’s argument that the employees were

Pier 1 Settles Class Action Over Call-In Shifts for $3.5 Million

December 27, 2017

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Pier 1 Import has agreed to pay $3.5 million to settle a class action lawsuit brought on behalf of about 9,300 retail store associates in California.  The lawsuit alleged the company owed workers pay for when they are scheduled to call the store to ask if they should report for work or stay home.

California requires employers to provide “reporting time pay” to employees.  Employers must provide a few hours of pay when an employee reports to work for a scheduled shift but is dismissed a short time later because business is slow.

The complaint alleged that Pier 1 violated this law by requiring employees to call in one to two hours before the scheduled shift.  Employees complained that the call-in shifts were mandatory, and required employees to schedule their time around the possibility that they may work after a call-in shift.  Pier 1 Import has since discontinued the scheduling practice at issue, which it called a “Flex Shift” policy.

Judge Dale A. Drozd of the United States District Court for the Eastern District of California granted preliminary approval of the settlement on December 12, 2017.  Class members will have an opportunity to object to the settlement or opt out before Judge Drozd decides whether to grant final approval.

For questions or additional information, contact the author, Traci Choi, at Traci.Choi@bryancave.com or 949-223-7169.

Dollar Tree Wins California Pay Stub Class Action

November 10, 2017

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Dollar Tree Wins California Pay Stub Class Action

November 10, 2017

Authored by: BCLP and Traci Choi

A California federal jury has returned a verdict in favor of Dollar Tree in Francisca Guillen v. Dollar Tree Stores, Case No. 2:15-cv-03813, finding that providing pay stubs on cash register receipts did not violate state law requiring accessible wage statements.

Plaintiff Francisca Guillen filed the lawsuit in the Central District of California representing a class of 5,400 retail employees, alleging that workers had to print their direct deposit wage statements from the cash registers, rather than receiving a paper statement or having an online portal. Guillen further complained that corporate workers of Dollar Tree had access to wage statement information on the company’s website.

Dollar Tree successfully defended its practices, contending that its register stub system was designed to be convenient and free for store associates, who may not have access to the internet or a printer at home. Further, the register statements included all of the information required by law.  Employees were also permitted to request a paper statement in the mail.  Click here to see a copy of the redacted verdict.

For questions or more information, contact the author, Traci Choi, at (949) 223-7169 or Traci.Choi@bryancave.com.

Oregon Passes Predictable Scheduling Law; How to Ensure Your Business Complies

August 24, 2017

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Oregon has become the first state to enact a predictable scheduling law, S.B. 828, which regulates employer scheduling practices in the food service, hospitality, and retail industries. As we previously reported, cities such as New York, Seattle, and San Francisco have passed similar measures. Oregon is likely the first of many states to pass such legislation.  The new law will take effect on July 1, 2018.

The law applies to retail establishments that operate in Oregon and employ at least 500 employees worldwide. Separate entities may be considered an “integrated enterprise” for purposes of determining whether an employer employs at least 500 employees.  The legislation tasks the Commissioner of the Bureau of Labor and Industries to adopt rules to assist employers to determine whether separate entities are an integrated enterprise.

The law applies to non-exempt employees of covered employers, and does not apply to salaried, exempt employees, workers supplied by a worker leasing company, or employees of businesses that provide services to or on behalf of an employer.

The stated purpose of the law is to enhance the predictability of work schedules for non-exempt employees, and to ensure at least 10 hours of rest between shifts. Below are some key highlights of the law:

  • An employer must provide a new employee with a written good faith estimate of the employee’s work schedule at the time of hire, which should include the median number of working hours per month, and an explanation of whether the employee can be

New York City Follows Trend in Passing Predictive Scheduling Law for Retail

June 27, 2017

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New York City has enacted a law banning “on-call scheduling” for retail employees. The law takes effect on November 26, 2017.

With “on-call scheduling,” an employer requires an employee to be available to work, to contact the employer, or to wait to be contacted by the employer to determine whether the employee must report to work.

New York City’s new law, Local Law § 20-1251 (Int. No. 1387-A), prohibits retail employers from cancelling, changing, or adding work shifts within 72 hours of the start of the shift. Retail employees may, however, request time off and switch shifts with their co-workers.  Employers can revise employees’ work schedules with less than 72 hours’ notice under limited circumstances.

Retail employers must also: (1) post employees’ schedule 72 hours before the beginning of the scheduled hours of work; (2) provide upon request a written copy of employee’s schedule for any week worked within the past three years; and (3) provide upon request the current schedule for all retail employees at the work location.

New York City follows a number of other cities in implementing scheduling laws for retail employers. San Francisco set the trend when it enacted the Predictable Schedule and Fair Treatment for Formula Retail Employees Ordinance in 2015. Police Code section 3300G imposes penalties on employers for changing schedules on short notice, requiring one hour of “predictability pay” when schedules are changed with less than seven days but more than 24 hours of notice. Employees must receive additional pay if

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