News Release: 12/11/2018

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December 11, 2018
This week the NYS Department of Labor released revised proposed regulations aimed at curbing certain employer staffing practices, specifically, the practices of “on-call” and “call-in” scheduling. These revised proposed rules differ significantly from the original proposed rules and would modify the call-in pay requirement of the Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142).
The revised proposed regulations are an improvement on the original rules published November 2017. They still, however, would submit employers to significant administrative burdens and potentially significant increases in payroll costs. Employers who use part-time, low-wage workers would be most affected. In brief, these revised proposed rules would:
  • Continue the current call-in pay practice of paying a minimum of four hours pay for employees who report to work and for whom no work is available. This would, however, be applied to each shift as opposed to current language regarding each day of work.
  • Unscheduled Shift: Require that employers pay workers who come to work for a shift not scheduled at least 14 days in advance an additional 2 hours of call-in pay
  • Cancelled Shift: Require employers to pay workers who have a shift cancelled less than 14 days in advance at least 2 hours of call-in pay; and for shifts cancelled less than 72 hours prior to the start of that shift an additional 4 hours of call-in pay
  • On-Call: Require an employee who is required by the employer to be available to report to work for any shift shall be paid for at least 4 hours of call-in pay
  • Call for Schedule: Require employers who ask workers to call within 72 hours of the start of the shift to confirm whether to report to work or not to pay an additional 4 hours of call-in pay
Call-in pay will be calculated at the basic minimum wage for your area and employer size. Call in pay is not considered hours worked for the purpose of calculating overtime. For example, in 2019 (when these rules are likely to be in place) if an upstate employer asks an employee to work a shift which was not scheduled at least 14 days in advance – the employer must pay that worker an addition $22.20 (2 hours x the minimum wage of $11.10).
There are some important exceptions to these pay mandates – and they have been revised in the latest proposed rules. The original rules would not require call in pay for
  • Employees during work weeks when their weekly wages exceed 40 times the applicable minimum wage (For upstate employees in 2019 that would be in excess of $444 per week (40 x $111.10)
  • Employees covered by a collective bargaining agreement that expressly provides for call-in pay
  • New employees during their first two weeks of employment
  • Certain provisions for shifts cancelled due to an act of God or other causes not in the employer’s control
  • Regularly scheduled employees who “volunteers to cover” for a shift scheduled to be worked by another employer
The revised rule extends this exemption for:
  • Employees whose duties are directly dependent on weather conditions
  • Employees whose duties are necessary to protect the health or safety of the public or any person
  • Employers who respond to weather or other travel advisories and offer employees options to reduce or increase their scheduled hours by leaving early, arriving late, etc. or any combination thereof
In addition, there is a NEW Safe Harbor provision. In general, this would allow a presumption that an employee has “volunteered to cover” a shift if the employer provides a written good faith estimate of hours to all employees upon hire (or after the effective date of these regulations). Doing this (and posting schedules 14-days in advance) would provide employers more opportunities to call-in employees for unscheduled shifts without the addition payments for call-in pay. Please read the Safe Harbor provision carefully for guidance on providing these written estimates of hours worked.
It was initially presented to The Business Council that these regulations would preempt recent New York City legislation regarding predictive scheduling in the retail and fast food industries. The Department has since backtracked on that position. At this date preemption is uncertain.
It is anticipated that these revised proposed rules will appear in the December 12th edition of the State Register. Interested parties will have 30 days to comment. 
Contact:
Heather Briccetti
heather.briccetti@bcnys.org, (518) 465-7511