SACRAMENTO – Following a dispute between Abercrombie & Fitch and tens of thousands of employees, the clothing retailer will be paying more than $9 million to employees who called into work and argued that it counts as reporting to work.
According to news.bloomberglaw.com, the dispute arose after employees of Abercrombie & Fitch were told to call into work before a shift in order to determine if they would be required to come in for their previously scheduled time. Based on the employees' opinion of the situation, their calling in to the business constituted reporting to work and was the basis for the dispute between them and their employer.
"There's a reporting time law in California that has been on the books for years, and the law requires that the employee reports to work, but that if they are not put to work, then they have to be compensated for showing up and that the employee is basically entitled to pay for at least half of what they were scheduled for, up to a maximum of 2 hours," Roger Crawford at Best, Best & Krieger told the Northern California Record. "But this approach is something that is new for the past two years and has been somewhat unresolved in California, and there aren't any court cases on it currently."
As a result of the dispute, Abercrombie has agreed to pay $9.6 million to settle the claims brought forward by employees who are claiming that the retail scheduling practices violate California law that requires pay when an employee reports to work. It is yet to be determined as to whether this settlement is reasonable and if calling in should be considered reporting to work.
Michelle Lee Flores of Akerman LLP is an employment litigator who explained why this type of lawsuit has been common in recent years. Victoria's Secret also handled a similar settlement in 2017 for $12 million.
"What we've seen 10-15 years ago about meal breaks, timely meal breaks, getting rest breaks, misclassification, reimbursement for company use of personal property like cars and cellphones, in these company-wide practices have particularly showed up in light of different lawsuits, and this is the next step," Flores told the Northern California Record. "If you can get a large employer with lots of employees, the class is large and that means there is a big money payoff available."
Flores explained that plaintiffs' attorneys are often searching for lawsuits such as these that target company-wide practices in large companies so that they can achieve the greatest payoff possible, which is one reason that these types of cases have been on the rise in recent years.
Crawford believes that while this case is not particularly complicated, it does have the unique challenge of there being a solid argument on both the employees' and employer's sides.
"It's one of those areas where there is a solid argument based on the statutory interpretation that reporting to work actually means reporting to rather than calling in," Crawford said. "The more and more that the workforce relies on technology, the more that employees are allowed to work from home, or that becomes the norm, and there seems to be an expectation that working from home, even a call-in to see if you're required to come in, tends to blur the lines."
Flores echoed Crawford's thoughts on the matter, explaining that laws often take a long time to catch up to the reality of a situation.
"What this case shows is that there was a settlement, so what is still unknown by this particular case is does the call-in count under California law as reporting to work? That is where really it is the application of technology to the rules that have been established years ago," Flores said. "Laws are notoriously slow to catch up to the reality of current technology and modern practices, and so the complication is impactful as we ask, is this new way of knowing what your schedule is actually qualify for reporting to work?"
Flores explained that until there is a ruling, there will continue to be a gray area when referring to what reporting to work will mean.
"There is a gray area as we talk about reporting to work in the 'old sense' and the modern reality to institutional laws and the ways in which they are worded," Flores said.
Christine Haddon at the California Chamber of Commerce declined from commenting on the case.