NY DOL Recently Issued Proposed Employee Scheduling Regulations

NY DOL Recently Proposed Regulations to Address What is Commonly Identified as “Just-in-Time”, “Call-in”, or “On-call” Scheduling

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.

Call-In Pay

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:

• Show-Up Pay: An employee who by request or permission of the employer reports for work on any shift must be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage of call-in pay.
• Unscheduled shift: An employee who by request or permission of the employer reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift must be paid an additional two hours of call-in pay. Where an employer provides a weekly schedule, 14-day period may be measured from the last day of the schedule.
• Cancelled shift: An employee whose shift is cancelled by the employer must be paid for at least two hours of call-in pay, if the shift is cancelled within 14 days, or for at least four hours of call-in pay if the shift is cancelled within 72 hours, in advance of the scheduled start of such shift.
• On-call: An employee who is required by the employer to be available to report to work for any shift must be paid for at least four hours of call-in pay.
• Call for schedule: An employee who is required by the employer to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work must be paid for at least four hours of call-in pay.

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.

Exceptions to Proposed Regulations

New York’s proposed predictive scheduling regulations would not apply to all employees. Notable exceptions include the following:

• Employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay;
• Employees who work during work weeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage rate; and
• Employees whose duties are directly dependent on weather conditions, or to employees whose duties are necessary to protect the health or safety of the public or any person, or to employees whose assignments are subject to work orders or work order cancellations; provided, however, that such employees also receive weekly compensation that exceeds the number of compensable hours worked times the applicable basic minimum wage rate, with no allowances.

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.

Safe Harbor

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.

Next Steps for New York Employers

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 questions, please contact us

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.