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New York State DOL Releases Proposed Scheduling Rules

  • Draft regulations would significantly revise call-in pay requirements applicable to employers covered under the state’s Miscellaneous Wage Order.
  • Changes are intended to protect low-wage workers who must scramble to find child care, miss appointments, or other commitments when they have no voice in their schedules.
  • Proposed regulations were released on Nov. 22, 2017 with 45-day public comment period.

Proposed regulations intended in part to give workers a voice in their schedules

The New York State Department of Labor (DOL) has proposed rules that would significantly expand entitlement to call-in pay for all employees in the state subject to the Miscellaneous Industries and Occupations minimum wage order. The proposed regulations would expand the provisions in this particular wage order to require call-in pay when an employee reports to work, works an unscheduled shift, has a shift canceled, is on-call, or has to call to confirm a shift.

The New York State DOL developed these regulations after soliciting input through several public hearings held across the state to give workers a voice in their own schedules and protect the most vulnerable low-wage workers. "At the same time," the department notes, "businesses will retain the flexibility they need to run successfully."

The public has 45 days to comment on the proposed rules upon their publication in the State Registrar on Nov. 22, 2017.

Proposed rules would establish on-call scheduling standards

The New York State DOL notes that "just in time," "call-in," or "on-call" scheduling are common practices that permit businesses to arrange or cancel workers' shifts just hours before — or even after — they start. "These practices often leave workers scrambling to find child care and force them to miss appointments, classes, or important family commitments. This affects workers in retail and other service sectors and can cost them hours and pay they had already budgeted," the DOL said.

Benefits to workers and employers were described in the Governor’s press release:

For workers, the regulations would:

  • Establish a 14-day advance notice standard for scheduling and provide two hours' extra pay for last-minute assignments.
  • Expand existing reporting pay of at least four hours to now include last-minute cancellations and assignments, as well as on-call shifts requiring workers to stand by to come into work.

For employers, the regulations would: 

  • Provide flexibility by allowing businesses to offer new shifts without a premium during the first two weeks of a worker's employment, permitting worker shift swaps and substitutions without penalty, and allowing for weather-related cancelations without penalty with 24 hours' notice.
  • Impose no blanket prohibitions or mandates — employers retain control over their scheduling practices. Those that provide predictable scheduling will see no additional compliance costs.

If adopted as proposed, the Employee Scheduling Regulations would require that covered employers compensate eligible employees when they:

  • Report to work: At least four hours of call-in pay.
  • Work an unscheduled shift: Two additional hours of call-in pay for any shift with hours not scheduled at least 14 days in advance.
  • Have a scheduled shift canceled: Four hours of call-in pay for any shift canceled less than 72 hours in advance.
  • Are on-call: Four hours of call-in pay if the employee has to be available for work.
  • Must call for their schedule: Four hours of call-in pay when workers have to contact the employer up to 72 hours in advance to confirm whether to report for a shift.

Exceptions exist for employees covered by a collective bargaining agreement that specifically provides for call-in pay; and for employees during weeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage. New employees are exempt during their first two weeks of employment, and regularly scheduled employees who volunteer to cover certain shifts may also be exempt from the requirements. And finally, an employee whose shift is cancelled due to his or her request for time off or because operations are stopped due to an act of God or other cause outside the employer’s control may also be exceptions under the revised scheduling regulations.

The proposed regulations also provide detail on the calculation of call-in pay including in the case of actual attendance, minimum rates, offsets, and shorter workdays. The regulations do not indicate whether they would pre-empt the recently effective New York City Fair Workweek Law.

Next Steps

The NYS DOL may decide to amend the proposed rules, abandon the regulations altogether, or adopt the regulations as written. Paychex will continue to monitor developments and provide updates. Employers in New York state covered under the Miscellaneous Industries and Occupations Wage Order should begin to prepare to revise their scheduling policies and pay practices, and consider hiring a human resources expert to help them navigate the potential changes.

Tammy Tyler

Tammy Tyler is a senior compliance analyst with a focus on employment law at Paychex, Inc., a leading provider of integrated solutions for payroll, HR, retirement, and insurance services.

This website contains articles posted for informational and educational value. Paychex is not responsible for information contained within any of these materials. Any opinions expressed within materials are not necessarily the opinion of, or supported by, Paychex. The information in these materials should not be considered legal or accounting advice, and it should not substitute for legal, accounting, and other professional advice where the facts and circumstances warrant.
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