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.
On the eve of the November 26, 2017 effective date of New York City’s own predictive scheduling regulations that affect retail and fast food employers,1 the New York State Department of Labor has issued proposed predictive scheduling regulations for certain industries. The proposed regulations would revise the Minimum Wage Order for the Miscellaneous Industries and Occupations to limit employers’ ability to schedule employees for on-call shifts and require employers to pay employees for cancelled shifts and newly issued shifts. If the proposed regulations become effective, New York State would become the second state in the country to implement state-wide predictive scheduling rules.
While New York City’s regulations target only retail and fast food employers, the proposed state-wide regulations would affect any employer that is covered under the Minimum Wage Order for the Miscellaneous Industries and Occupations. Covered employers include those in the retail, financial services, health-care, and construction industries. The only employers not covered by these proposed regulations are hospitality employers, non-profitmaking institutions, employers in the building service industry and employers of farm workers.
Under the 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 that has not been scheduled at least 14-days in advance;3,4
- pay an additional four hours of call-in pay to an employee whose shift is canceled within 72 hours of the scheduled start of such shift;5
- 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.
The regulations define that call-in pay shall be calculated by paying an employee at her regular or overtime rate (minus any permitted allowances) for the time of the employee’s actual attendance. With respect to the portion of the call-in pay required for the time the employee is not actually working, the employer is required to compensate the employee at the basic minimum hourly rate (with no allowances permitted). The regulations also specifically provide that an employer cannot require an employee to use any paid leave time to offset the required call-in pay.
The proposed regulations specifically do not apply to exempt, executive, administrative and professional employees, and also do not apply to employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.
Call-in pay also does not apply to employees whose weekly wages exceed 40 times the applicable basic hourly minimum wage rate. Although this exception is awkwardly worded, this appears to mean that a covered employer is not required to pay 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.
The proposed regulations also provide a limited exception to the requirement to issue call-in pay to those employees who report to work for any shift that has not been scheduled at least 14 days in advance. Specifically, the employer will not be required to issue call-in pay 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. A “regularly scheduled employee” means an employee who is scheduled at least fourteen days in advance for shifts consistent with a written good faith estimate of hours provided by the employer at the time of hiring or at the time that the regulations go into effect, whichever is later.6 In addition, the term “volunteers to cover” as used in the proposed regulations means the acceptance of any request from another regularly scheduled employee or of an open request from the employer that is extended to all eligible employees, with no penalty or consequence for any employee who does not extend or accept such requests.
Finally, the proposed regulations provide that an employer will not be required to issue call-in pay premiums for shift cancellations, when it 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, including, but not limited to, a state of emergency declared by federal, state, or local government. However, where operations can begin or continue but staffing needs are reduced due to act of God or other cause not within the employer’s control, the 72-hour shift cancellations period shall be reduced to 24-hours for regularly scheduled employees.
Presently, it is unknown whether these regulations will preempt New York City’s predictive scheduling laws that apply to retail establishments.
In addition, it is unclear when the New York State Department of Labor will issue regulations that cover the hospitality industry. It is, however, certain, that such regulations will be issued.
The proposed regulations will be published in the November 22, 2017 issue of the State Register and will be subject to a comment period for 45 days from that publication date (January 8, 2018). To submit a comment, you can email firstname.lastname@example.org. It is unclear if the final regulations will be identical to the proposed regulations or if the New York State Department of Labor will clarify ambiguities such as whether covered employers are required to provide new hires with a good faith scheduling estimate, or whether they are required to publish schedules 14 days in advance.
Employers may wish to submit comments on the proposed regulations, or join with industry groups to do so. Because these regulations may become effective shortly after the New Year, we recommend that covered employers develop predictive scheduling templates such as good faith scheduling estimates, and shift change or shift swap consent forms. Employers should also consider the feasibility of eliminating on-call or call-in scheduling practices.
1 See Eli Freedberg and Christine Hogan, The DCA Has Issued Proposed Rules for the New York City Fair Workweek’s Predictive Scheduling Laws, Littler Insight (Oct. 27, 2017).
2 If the employer regularly schedules an employee for a shift shorter than 4-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 short, regularly scheduled shift.
3 This provision does not apply to any new employee during her first two weeks of employment.
4 Although the proposed regulations do not explicitly require covered employers to issue schedules to employees with 14-days’ notice, there appears to be an implicit obligation that all covered employers must post or disseminate work schedules at least 14-days in advance of the next shift, lest they be required to pay the “unscheduled shift” penalty.
5 If the canceled shift is one that is regularly less than 4-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 short, regularly scheduled shift.
6 Although the proposed regulations do not explicitly require covered employers to issue good faith estimates of employees’ schedules at the time of hire, or at the time these regulations go into effect, there appears to be an implicit obligation that all covered employers issue these estimates, lest they be required to pay the “unscheduled shift” penalty.