Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In 2017 and 2018, the New York State Department of Labor (NY DOL) issued two sets of proposed regulations to amend the Minimum Wage Order for Miscellaneous Industries and Occupations, which governs most employers in New York State, to incorporate predictable scheduling rules.1 These proposed regulations would have required employers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations to provide employees work schedules at least 14 days in advance and to pay additional premium payments to employees whose schedules change, either by adding shifts or subtracting shifts, with less than 14 days’ notice. Despite multiple attempts to implement the regulations, the NY DOL has indicated that it is withdrawing them.
Although the NY DOL has withdrawn the proposed regulations, it is possible that the New York State Legislature will take up the issue of state-wide predictable scheduling. With a single party in control of both the executive and legislative branches, employers would be remiss in assuming that this issue has completely disappeared. Moreover, even though the NY DOL has withdrawn these proposed regulations, it is important to note that New York State still maintains several scheduling limitations and premiums. For example, employers are prohibited from scheduling employees to work seven consecutive days. In certain circumstances, employers also owe employees “spread-of-hour premiums” when an employee’s work day spans more than 10 hours from the beginning of the first shift until the end of the final shift. Employers in certain industries also are required to pay split shift premiums when an employee is required to work non-consecutive hours, or call-in pay premiums when an employee works for less than three or four hours.
All told, the development is a welcome one and further indicates that New York State is willing to consider feedback from the employer community. We know that many employers submitted comments in response to both sets of proposed regulations because several individual clients and trade associations engaged Littler’s Workplace Policy Institute to assist them in drafting and submitting such comments. It appears that DOL recognized the legitimate concerns addressed in these comments and relied on them in ultimately deciding not to implement the proposed regulations.
The lesson to be learned is that when given the opportunity, the employer community can galvanize and use its collective voice to address concerns when agencies or governmental bodies propose legislation or regulations that would adversely impact their business. If predictive scheduling is introduced in the New York State legislature, employers may be well-served to mobilize once again.
1 See Eli Freedberg, New York State Jumps on the Predictive Scheduling Bandwagon and Issues Proposed Scheduling Rules, Littler Insight (Nov. 14, 2017) and Eli Z. Freedberg and Paul Piccigallo, New York Agency Renews Effort to Promulgate State-Wide Predictable Scheduling, Littler ASAP (Dec. 11, 2018).