CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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December 1, 2017

New York State Department of Labor Proposes Regulations on Employee Scheduling

On November 22, 2017, the New York State Department of Labor (“NYSDOL”) released proposed regulations (“Proposed Regulations”) intended to develop the New York Labor Law’s provisions relating to call-in pay. The Proposed Regulations address schedule predictability for employees, particularly those in the service sector. The Proposed Regulations are subject to a 45-day comment period.

Key Provisions

The Proposed Regulations would revise and expand employer obligations relating to call-in pay in New York State:

  • Reporting to work: An employee who by request or permission of the employer reports for work on any shift must be paid for at least four hours 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 were not scheduled at least 14 days in advance must be paid an additional two hours of call-in pay.

 

  • Cancelled Shift: An employee whose shift is cancelled within 72 hours of the scheduled start of such shift must be paid for at least four hours of call-in pay.
  • On-Call: An employee who by request or permission of the employer is required to be available to report to work for any shift shall be paid for at least four hours of call-in pay.

 

  • Call for schedule: An employee who by request or permission of the employer 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 shall be paid for at least four hours of call-in pay.

Applicability

The Proposed Regulations cover employees subject to New York’s Miscellaneous Wage Order (“Wage Order”), meaning the regulations do not apply to executive, administrative, or professional employees who meet certain requirements in terms of their duties and pay. There are some notable exceptions:

  • Employees covered by a valid collective bargaining agreement expressly providing for call-in pay;
  • Paragraphs 2 through 5 under the “Key Provisions” section above do not apply to employees during work weeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage rate.
  • Paragraph 2 (“unscheduled shift”) under the “Key Provisions” section above does not apply to any new employee during the first two weeks of employment or to any regularly scheduled employee who volunteers to cover: (i) a new and additional shift during the first two weeks that the shift is worked; or (ii) a shift that had been scheduled at least fourteen days in advance to be worked by another employee.
  • Paragraph 3 (“cancelled shift”) under the “Key Provisions” section above does not apply when an employer cancels a shift at the employee’s request for time off, or when operations at the workplace cannot begin or continue due to an act of God or other cause not within the employer’s control.

Calculating Call-In Pay

For hours of call-in pay, payments are calculated at the basic minimum hourly wage rate. Employers must of course make payments to employees at the employee’s regular or overtime rate of pay, whichever is applicable, for all time actually worked. Employers may not make deductions for call-in pay. Likewise, call-in pay cannot be offset by the required use of leave time, or by payments in excess of those required under the Wage Order.
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 normally works for that shift, as long as the employee’s total hours worked (or scheduled to work) for that shift do not change from week to week. For example, an employee whose regular shift is only two hours will only receive two hours of call-in pay.

Impact on New York City’s Fair Workweek Law

New York City recently passed its “Fair Workweek Law,” which went into effect on November 26, 2017. For further information on the “Fair Workweek” legislation and its effect on retail and fast food employers, see our previous alerts:

The NYSDOL has commented its belief that the Proposed Regulations would preempt the Fair Workweek Law. However, whether the Proposed Regulations would in fact preempt the Fair Workweek law, and whether the NYSDOL would formally support that position, remains an open question. A definitive answer on this issue will not be expected until after the 45-day comment period for the Proposed Regulations.

Takeaway for Employers

In anticipation of the Proposed Regulations, employers should review their scheduling practices and call-in procedures to make sure that employees are scheduled at least 14 days ahead of time. In addition, retail and fast food employers covered by the New York City Fair Workweek Law should remain compliant with the Fair Workweek Law until there is a definitive response on whether the Proposed Regulations preempt the law.
An employer who wishes to submit a comment on the Proposed Regulations may do so by emailing hearing@labor.ny.gov.

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If you have any questions regarding the Proposed Regulations and employee scheduling, please do not hesitate to contact us. We will keep you appraised of changes and clarifications to the Proposed Regulations.