The New York State Department of Labor (“NYSDOL”) recently published revised proposed regulations (“Revised Proposed Regulations”) to “call-in” pay (also referred to as “just-in-time” or “on-call” pay), which would amend the rules for scheduling employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (the “Miscellaneous Wage Order”). One notable change is that covered employees whose shifts are cancelled by the employer within 14 days of the scheduled shift must receive at least two hours of call-in pay. The Revised Proposed Regulations will be available in the December 12, 2018 issue of the State Register, and will be subject to a 30-day comment period.

Background

As we reported in our previous alert, on November 22, 2017, the NYSDOL released proposed regulations to revise and expand employer obligations relating to call-in pay for employees covered by the Miscellaneous Wage Order. The Miscellaneous Wage Order applies to all New York employees, except those covered by the New York Hospitality Industry Wage Order, which regulates restaurants and hotels, or the New York Minimum Wage Order for the Building Service Industry, which covers janitors and other building service industry workers.

The November 2017 proposal imposed call-in pay penalties designed to restrain scheduling practices, such as on-call scheduling, last-minute cancellations, and call-in requirements. A covered employer would be required to pay any covered employee at least four hours of call-in pay in the following circumstances:

  • Reporting to work: an employee who reported to work for any shift, by request or permission of the employer;
  • Cancelled shift: an employee who had a shift cancelled within 72 hours of the shift;
  • On-call: an employee who is required to be available to report to work for any shift; or
  • Call for schedule: an employee who was required by request or permission of the employer to be in contact with the employer within 72 hours of the start of the shift to confirm whether to report for work.

An employer would be required to pay an extra two hours of call-in pay to any covered 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 of the shift (i.e., an unscheduled shift).

Revised Proposed Regulations

After conducting four hearings and receiving testimony on the November 2017 proposed regulations, the NYSDOL developed the Revised Proposed Regulations, which provide clarification on call-in pay and provide additional exceptions to the call-in pay requirement. Notable changes from the previous proposed regulations include:

  • Call-In Pay

Unscheduled shift. Clarifies that, where an employer provides a weekly schedule, the 14-day period may be measured from the last day of the schedule.

Cancelled shift. Provides additional requirement of at least two hours of call-in pay for an employee whose shift is cancelled by the employer within 14 days.

On-call. Narrows the definition of what constitutes “on-call” by including only those employees who are required by the employer to be available to report to work for any shift, as opposed to employees who, by request or permission of the employer, are required to be available.

Call for schedule. Narrows the definition of what constitutes “call for schedule” by including only those employees who are 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, as opposed to employees who, by request or permission of the employer, are required to be in contact with the employer.

  • Calculation of Call-In Pay

The Revised Proposed Regulations are almost identical to the November 2017 proposed regulations concerning the calculation of call-in pay. Call-in pay is calculated at the basic minimum hourly wage rate. Call-in payments are not payments for time worked or work performed and should not be included in the regular or overtime rate of pay, whichever is applicable. Employers should not make deductions for call-in pay, and 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 Revised Proposed Regulations specify that, for shorter work days, 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. The Revised Proposed Regulations no longer requires the employee’s total hours worked (or scheduled to work) to be the same from week to week.

  • Applicability/Exclusions

Weather, Health, Safety
The Revised Proposed Regulations seek to include additional exclusions to call-in pay. For example, the regulations exclude from call-in pay employees whose duties are directly dependent on weather conditions. They also exclude employees whose duties are necessary to protect the health or safety of the public or any person, and employees whose assignments are subject to work orders. However, these employees must receive weekly compensation that exceeds the number of compensable hours worked times the applicable basic minimum wage rate, with no allowances.

New Employees and Volunteers
The regulations also provide clarification as to instances of when call-in pay does not apply to unscheduled shifts. Specifically, the Revised Proposed Regulations would exclude application for: (1) any new employee during the first two weeks of employment, or (2) any employee (as opposed to any regularly scheduled employee) who volunteers to cover a new shift or a previously scheduled shift.

There is 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. For previously hired employees, the written estimate of hours may be provided after the effective date of the proposed regulations. The written estimate of hours may be amended at the employee’s request or upon two weeks’ notice by the employer. The request to cover a new or previously scheduled shift must be either: (1) made by the employee whose shift would be covered, or (2) made by the employer in writing to a group of employees requesting a volunteer from among the group. If no employee volunteers prior to a reasonable deadline, the employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.

Related to Weather or Other Travel Advisories
In addition, the Revised Proposed Regulations provide that unscheduled shift and cancelled shift call-in pay 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 of the foregoing.

Takeaway for Employers

The Revised Proposed Regulations will be subject to a 30-day comment period. Employers may submit a comment on the proposed regulations by emailing hearing@labor.ny.gov. In anticipation of the new regulations, employers should review their scheduling practices and call-in procedures to ensure that employees are scheduled at least 14 days in advance. Retail and fast food employers covered by the New York City Fair Workweek Law should ensure compliance with that law, as covered in detail in our previous alerts.

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If you have any questions regarding the Revised Proposed Regulations, call-in pay, or the New York City Fair Workweek Law, feel free to contact us. We will keep you updated of changes and clarifications to the Revised Proposed Regulations.

PUTNEY, TWOMBLY, HALL & HIRSON LLP