Data can be really useful for making the most of a company’s time and resources. It can lead to safer work flows, better regulation compliance, understanding improvement, minimizing risk, and measuring actual progress toward goals. With labor often an employer’s highest expense, data addressing employee habits and peak labor needs can help sew a strong thread of efficiency in day to day operations.
With all the benefits that can come from modern data collection, data can also be viewed as over-intrusive, pressurizing, complicating, and lacking the unmeasurable traits of a human workforce. Over the next few posts, I will be focusing on the changing climate of work place data collection. Though data collecting and use is nothing new, employers should be mindful of the legal effects and legislative lag that such practices are encountering.
Photo by
Dave Herholz on Flickr CC BY-SA 2.0.
Just-In-Time Scheduling
Just-in-time scheduling uses algorithms to determine when and how long employees should be on the clock. Employers take into account data such as “last year’s sales trends, economic indicators, changes in weather,” and other variables to schedule who works when. As Lindsay A. Ayers pointed out, just-in-time scheduling normally uses on-call shifts that “require an employee to call in to work prior to the start of a tentatively scheduled shift to find out whether he or she needs to report for work.”
Pay Issues With On-Call Time
Employers can run into issues with pay for on-call employees. It is a no brainer that employers must pay their employees for time worked, but on-call time is a gray area. As the US Department of Labor (DOL) has stated, “Whether hours spent on-call is hours worked is a question of fact to be decided on a case-by-case basis. All on-call time is not hours worked.” In defining on-call time, the DOL has said:
An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.
In deciding when an employee needs to be paid for on-call time, courts will typically consider the following factors:
whether the employee could engage in personal matters during the standby shift, any geographical restrictions imposed on the employee, the frequency of calls and the time limit for responding to calls.
While the courtroom is often the most expensive place to decide an issue like this, the DOL has created an interactive set of questions to help employers decide compensation issues for on-call employees
Emerging Issues
Employers who use just-in-time scheduling have come under scrutiny as of late from a number of sources. The New York Attorney General has been conducting “a probe into on-call scheduling,” mainly directed at large retail entities. It recently wrote that on-call shifts leave “too little time to make arrangements for family needs, let alone to find an alternative source of income to compensate for the lost pay.” The investigation seems to have already change some companies’ scheduling procedures.
As far as relevant lawsuits, Mayra Casas v. Victoria's Secret Stores, LLC is a class action lawsuit brought by Victoria Secret clerks claiming “they’re owed $37 million for shifts that were canceled or shortened” due to on-call scheduling. The case in currently in the appellate phase in the Ninth Circuit after a lower court judge refused to include in the class those left at home through on-call scheduling.
Legislation has also began to address on-call time. A recent San Francisco ordinance now requires a “good faith written estimate” for an employee’s projected schedule. The ordinance specifically states that the “estimate shall include On-Call Shifts.” Other jurisdictions, including “Connecticut, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota and Oregon” have proposed similar legislation.
For more information about just-in-time scheduling and the use of data in the work place, check out NPR’s Science Friday discussion about how employers are monitoring employees both in and out of the workplace.
