United States: New York Agency Renews Effort To Promulgate State-Wide Predictable Scheduling

Last Updated: December 17 2018
Article by Eli Freedberg and Paul R. Piccigallo

On December 7, 2018, the New York Department of Labor (NYDOL) proposed a new set of "predictable scheduling" regulations in an effort to discourage on-call shifts and require employers to pay employees for cancelled shifts.1 With this new proposal, employers have another opportunity to comment on the regulations before they are finalized.

The NYDOL's newly proposed regulations are designed to apply to every employer that is covered by the state Minimum Wage Order for the Miscellaneous Industries and Occupations. This generally includes employers in the retail, financial, healthcare and construction industries, but excludes employers in the hospitality and/or building service industries, non-profit entities and employers of farm workers. If adopted, these regulations will purport to supplement New York City's scheduling law, which applies generally to retail and fast food employers in New York City.

Under these proposed regulations, covered employers must:

  • Pay at least four hours of "call-in pay" to any employee who reports for work by request or permission of the employer;2
  • Pay an additional two hours of call-in pay to an employee who reports to work for any shift scheduled with less than two weeks' notice;3
  • Pay an additional two hours of call-in pay to an employee whose shift is cancelled within 14 days in advance of the scheduled start of such shift, and pay an additional four hours of call-in pay to an employee whose shift is cancelled within 72 hours of the scheduled start of such shift;4
  • Pay an additional four hours of call-in pay to an employee who is required to be available to report to work; and
  • Pay an additional four hours of call-in pay to an employee who is required to be in contact with the employer within 72 hours of the start of the shift to confirm whether to report to work.

Under the proposed regulations, call-in pay is calculated by paying an employee at her regular or overtime rate (minus any permitted allowances) for the time of the employee's actual attendance. Regarding call-in pay required for the time when an employee is not actually working, the employer is required to compensate the employee at the basic minimum hourly rate (with no allowances permitted). The proposed regulations also prohibit employers from requiring staff to use their accrued paid time off in lieu of receiving the required call-in pay.

The proposed regulations will not require premium pay for employees who work shifts scheduled with less than two weeks' notice if: (i) he/she is a new employee in the first two weeks of employment; or (ii) he/she volunteered to cover a "new shift" or a "previously scheduled shift." A "new shift" means the first two weeks of an additional shift that effectively increases staffing at the workplace during that shift, and a "previously scheduled shift" means one that would not have required call-in pay if the employee originally assigned that shift had worked it. The proposed regulations also clarify that an employee may only "volunteer" to cover the new or previously scheduled shift if she does so of her own volition and could have refused it.

If finalized, the proposed regulations will not apply to unionized employees whose collective bargaining agreement already provides for specified call-in pay. Nor will they apply to employees whose weekly wages are more than 40 times the applicable minimum wage rate.5 Although this exception is awkwardly worded, this appears to mean that a covered employer is not required to issue call-in pay premiums to any covered employee who worked more than 40 hours in a workweek and who would be owed overtime pay for that week and also would exclude an employee whose compensation for a particular week is greater than the applicable minimum wage multiplied by 40.

The revised regulations also except from the call-in pay requirements those 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 cancellations thereof."6 For such exceptions to apply, these employees must receive weekly compensation that exceeds the number of compensable hours worked times the applicable basic minimum wage rate, with no allowances.

In addition, the proposed regulations will not require call-in pay for cancelled shifts or for employees who work unscheduled shifts if there is a weather or other travel advisory and the employer offers employees the option of reducing or increasing their scheduled hours, so they may stay home, arrive early or late, depart early or late, or a combination of these.

Finally, the proposed regulations provide that call-in pay will not be required when shifts are cancelled at the employee's request, or when operations cannot begin or continue due to an act of God or other cause outside the employer's control. Such events include governmental states of emergency.

The NYDOL's newly proposed regulations will appear in full, likely with corresponding explanations, in the December 12, 2018 issue of the New York State Register. The revised regulations will be subject to a 30-day comment period from that publication date, so comments will likely be due by January 11, 2019, or thereabouts. Comments may be submitted via email to hearing@labor.ny.gov.

Footnotes

1 The NYDOL issued another set of proposed predictable scheduling regulations last year, but they were not adopted.

2 If the employer regularly schedules an employee for a shift shorter than four hours, and that shift does not change from week to week, then the amount of call-in pay owed will be the number of hours of that shorter, regularly scheduled shift.

3 The revised regulations provide "[w]here an employer provides a weekly schedule, 14-day period referenced in this section may be measured from the last day of the schedule."

4 If the cancelled shift is one that is regularly less than four hours, and that shift does not change from week to week, then the amount of call-in pay owed will be the number of hours of that shorter, regularly scheduled shift.

5 This would exclude: (i) employees of large employers in New York City who are paid more than $520/week (increasing to $600/week beginning January 1, 2019); (ii) employees of small employers in New York City who are paid more than $480/week (increasing to $540/week beginning January 1, 2019), (iii) employees in Nassau, Suffolk, or Westchester Counties who are paid more than $400/week (increasing to $480/week beginning January 1, 2019), and (iv) employees elsewhere in New York State who are paid more than $416/week (increasing to $444/week beginning January 1, 2019).

6 The revised regulations do not further define, or provide examples of, employees "whose duties are directly dependent on weather conditions," or "whose duties are necessary to protect the health or safety of the public or any person," or "whose assignments are subject to work orders, or cancellations thereof."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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