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Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comAuthor: Scarinci Hollenbeck, LLC|January 28, 2019
New York employers, particularly those in the retail and service industries, should be prepared for new obligations this year. The New York Department of Labor (NY DOL) recently proposed regulations to address what is commonly identified as “just-in-time,” “call-in” or “on-call” scheduling.
In 2017, Governor Andrew M. Cuomo directed the Commissioner of Labor to solicit public comments on how to best address employee scheduling concerns. According to Cuomo, “just-in-time,” “call-in” or “on-call” scheduling practices can cost workers hours and pay they had already budgeted. In addition, they can often leave workers scrambling to find child care and force them to miss appointments, classes or other commitments.
New York law currently requires that employees be paid a minimum of four hours pay for showing up at a worksite at the employer’s request (show-up pay), even if the employee is immediately sent home upon reporting to work. However, an exception applies if the employee’s regular rates exceed the minimum wage so that the amount earned by the employee in excess of the minimum wage is more than the employee’s required show-up pay.
Under the NYDOL’s proposed rulemaking, Sections 142-2.3 and 142-3.3 of 12 NYCRR would be amended as follows:
Payments for time of actual attendance must be calculated at the employee’s regular rate or overtime rate of pay, whichever is applicable. Meanwhile, payments for other hours of call-in pay must be calculated at the basic minimum hourly rate.
Because such payments are not payments for time worked or work performed, they need not be taken into account when determining if overtime must be paid. The four hours of call-in pay for reporting to work and for cancelled shifts may be reduced to the lesser number of hours that the employee is scheduled to work and normally works, for that shift.
New York’s proposed predictive scheduling regulations would not apply to all employees. Notable exceptions include the following:
Under the proposed rulemaking, the unscheduled shift and cancelled shift provisions would not apply when an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours, so that employees may stay home, arrive early, arrive late, depart early, depart late, or any combination thereof, without call-in pay for unscheduled or cancelled shifts. The regulations further provide that the provisions regarding cancelled shifts do not apply when an employer cancels a shift at the employee’s request for time off, or when operations at the workplace can’t begin or continue due to an act of God or other cause not within the employer’s control, such as a state of emergency declared by federal, state, or local government.
The proposed predictive scheduling regulations include a safe harbor provision. It establishes a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if the employer provides a written good faith estimate of hours to all employees upon hiring (or after the effective date of the regulation for previously hired employees) and if the request to cover a new or previously scheduled shift is either: (i) made by the employee whose shift would be covered; or (ii) made by the employer in a written communication to a group of employees requesting a volunteer from among the group and identifying a reasonable deadline for responses. If no employee volunteers prior to the deadline, the employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.
New York employers that may be impacted by the proposed regulations should begin to explore what changes they will need to make to comply with the predictive scheduling requirements. For assistance, we encourage you to contact a member of the Scarinci Hollenbeck Labor & Employment Law Group.
If you have any questions or if you would like to discuss the matter further, please contact me, Scott Heck, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
The Firm
201-896-4100 info@sh-law.comNew York employers, particularly those in the retail and service industries, should be prepared for new obligations this year. The New York Department of Labor (NY DOL) recently proposed regulations to address what is commonly identified as “just-in-time,” “call-in” or “on-call” scheduling.
In 2017, Governor Andrew M. Cuomo directed the Commissioner of Labor to solicit public comments on how to best address employee scheduling concerns. According to Cuomo, “just-in-time,” “call-in” or “on-call” scheduling practices can cost workers hours and pay they had already budgeted. In addition, they can often leave workers scrambling to find child care and force them to miss appointments, classes or other commitments.
New York law currently requires that employees be paid a minimum of four hours pay for showing up at a worksite at the employer’s request (show-up pay), even if the employee is immediately sent home upon reporting to work. However, an exception applies if the employee’s regular rates exceed the minimum wage so that the amount earned by the employee in excess of the minimum wage is more than the employee’s required show-up pay.
Under the NYDOL’s proposed rulemaking, Sections 142-2.3 and 142-3.3 of 12 NYCRR would be amended as follows:
Payments for time of actual attendance must be calculated at the employee’s regular rate or overtime rate of pay, whichever is applicable. Meanwhile, payments for other hours of call-in pay must be calculated at the basic minimum hourly rate.
Because such payments are not payments for time worked or work performed, they need not be taken into account when determining if overtime must be paid. The four hours of call-in pay for reporting to work and for cancelled shifts may be reduced to the lesser number of hours that the employee is scheduled to work and normally works, for that shift.
New York’s proposed predictive scheduling regulations would not apply to all employees. Notable exceptions include the following:
Under the proposed rulemaking, the unscheduled shift and cancelled shift provisions would not apply when an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours, so that employees may stay home, arrive early, arrive late, depart early, depart late, or any combination thereof, without call-in pay for unscheduled or cancelled shifts. The regulations further provide that the provisions regarding cancelled shifts do not apply when an employer cancels a shift at the employee’s request for time off, or when operations at the workplace can’t begin or continue due to an act of God or other cause not within the employer’s control, such as a state of emergency declared by federal, state, or local government.
The proposed predictive scheduling regulations include a safe harbor provision. It establishes a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if the employer provides a written good faith estimate of hours to all employees upon hiring (or after the effective date of the regulation for previously hired employees) and if the request to cover a new or previously scheduled shift is either: (i) made by the employee whose shift would be covered; or (ii) made by the employer in a written communication to a group of employees requesting a volunteer from among the group and identifying a reasonable deadline for responses. If no employee volunteers prior to the deadline, the employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.
New York employers that may be impacted by the proposed regulations should begin to explore what changes they will need to make to comply with the predictive scheduling requirements. For assistance, we encourage you to contact a member of the Scarinci Hollenbeck Labor & Employment Law Group.
If you have any questions or if you would like to discuss the matter further, please contact me, Scott Heck, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
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