NYS Department of Labor Issues Revised Employee Work Scheduling Regulations

Wednesday, January 2, 2019

The New York State Department of Labor “DOL” has issued revised, sweeping proposed rulemaking to address what is commonly identified as “just-in-time,” “call-in” or “on-call” scheduling. Read the text of the revised proposed rule here.

The proposed regulations are intended to address issues associated with what is commonly identified as “just-in-time” or “on-call” scheduling, a common practice which allows employers to cancel or schedule shifts before or after the start of a shift.

They provide for five (5) circumstances when “call-in” pay would be required:

  • Reporting to Work: Four (4) hours of “call-in” pay or the number of hours in the regularly scheduled shift, whichever is less, is required for employees who report to work and work is not available;
  • Unscheduled Shift: Where employees report to work for any shift not scheduled at least fourteen (14) days in advance, and work is not available, an additional two (2) hours of “call-in” pay (note that this requirement doesn’t apply to new employees within their first two (2) weeks of employment, or to any employee who volunteers to cover a shift);
  • Cancelled Shift: If an employee’s shift is cancelled prior to start, two (2) hours of “call-in” pay must be provided where cancellation is within fourteen (14) days, or four (4) hours of pay or the number of hours in the regularly scheduled shift, whichever is less, if cancelled within seventy-two (72) hours in advance of the start of the shift;
  • On-Call: Employees required to be available to report to work for any shift must be paid at least four (4) hours of “call-in” pay; and
  • Call for Schedule: Employees required to contact employer within seventy-two (72) hours of the start of a shift to confirm whether to report must be paid at least four (4) hours of “call-in” pay.

There are a multitude of exceptions to the call-in pay requirements. The proposed rulemaking affects most state employers subject to the Minimum Wage Order for Miscellaneous Industries and Occupations, but does not apply to those covered by the Hospitality Industry, Farm Workers, and Building Industries. The regulations do not apply to employees of state and local governments, with the exception of non-teaching employees of school districts/BOCES. In addition, the regulations will not apply to certain non-profit entities that have elected an exemption from the Minimum Wage Order.

The regulations do not apply to employees covered by a collective bargaining agreement that expressly provides for “call-in” pay. Employees whose weekly pay exceeds the number of hours worked times the minimum wage rate are also generally exempt from the regulations, except for the “call in” pay for reporting to work.

Further, with the exception of the requirement to provide call-in pay for employees who report to work but are sent home early, the regulations do not apply to employees whose duties are “directly dependent on weather conditions”; or whose duties are “necessary to protect the health or safety of the public or any person”; or whose assignments are subject to work orders or cancellations of same, so long as those employees receive weekly compensation that exceeds the number of hours worked times the minimum wage rate, with no allowances.

“Call-in” pay is not required for cancelled or unscheduled shifts when an employer responds to a weather/travel advisory by offering employees the option to voluntarily reduce/increase their work hours so that employee can stay home, arrive late or leave early, etc.; or for cancelled shifts at the employee’s request or when operations can’t begin due to an “act of God” or other cause not within the employer’s control. Nor is it required when an employee volunteers for an unscheduled shift.

The full rulemaking appeared in the December 12, 2018 issue of the State Register and will be subject to a comment period for thirty (30) days from that publication date, or through January 11, 2019. To submit a comment on this proposed regulation, please email hearing@labor.ny.gov.

Please contact any of the attorneys below from our labor and employment practice group if you have any questions regarding the proposed work schedule regulations.

Richard J. Andino
S. Alexander Berlucchi
Melinda B. Bowe
John R. Langey
Christopher M. Militello
Michael A. Tremont

 

This communication is not intended to serve as legal advice.
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