Revised rules from the New York State Department of Labor (“NYSDOL” or the “Department”) would impact many employers by expanding those situations for which an employee must receive "call-in pay."

In November 2017, after holding several public hearings, the NYSDOL issued proposed rules aimed at employer scheduling practices. Since then, the NYSDOL has been quiet regarding the status of those rules. On December 10, 2018, however, the Department released a revised version of the proposed rules (“revised rules”), which was published in the December 12, 2018 issue of the State Register. As proposed, the rules would impact many New York employers and substantially expand those situations for which an employee must receive “call-in pay.”

New York state's Minimum Wage Orders currently require covered employers to pay employees four hours of “call-in pay” under certain circumstances. The revised rules would amend the Minimum Wage Order for the Miscellaneous Industries and Occupations, which applies to almost all New York employees except those working in the hospitality industry, building service industry, farm labor industry, and government. The rules would apply to non-teaching staff in school districts, but not teaching staff in public school districts.

Under the revised rules, covered employers would be required to:

• Pay four hours of “call-in pay” to any employee who, by request or permission of the employer, reports to work (unless the employee reports for a regularly scheduled shift shorter than four hours, and that shift does not change from week to week; then the amount of call-in pay owed to that employee is the number of hours of the regularly scheduled shift).
• Pay two hours of call-in pay to any employee who is requested to work a shift that was not scheduled 14 days or more in advance.
• Pay at least two hours of call-in pay to any employee whose shift is canceled within 14 days of its scheduled start, or four hours of call-in pay to any employee whose shift is cancelled within 72 hours of its scheduled start (unless the employee was regularly scheduled to work a shift shorter than four hours, and that shift does not change from week to week, then the amount of call-in pay owed to that employee is the number of hours of the regularly scheduled shift).
• Pay at least four hours of “call-in pay” to any employee who is required to call in to the employer within 72 hours of the start of their shift to confirm whether to report to work.
• Pay at least four hours of call-in pay to any employee who is required to be available to report for any shift.

The revised rules would not apply to:

• Employees who are covered by collective bargaining agreements that provide call-in pay;
• Employees during any week in which they make more than 40 times the New York minimum wage;
• New employees during their first two weeks of employment; and
• Any employee who volunteers to cover a new or previously scheduled shift.

The revised rules also include a “safe harbor” provision. The provision states there shall be a rebuttable presumption that an employee volunteered to cover a new or previously scheduled shift if:

• The employer has provided a written estimate of hours to all employees upon hiring, or upon the date the proposed rules become effective, and
• A request to cover the shift is either made by the employee whose shift would be covered, or the request is made by the employer to a group of employees requesting volunteers.

If no employee volunteers, the employer may assign an employee to the shift without paying additional call in pay. In addition, the revised rules would expand the exceptions initially proposed to further address circumstances outside the control of employers that may require schedule changes. Specifically, the new requirements in the revised rules would not apply in the following circumstances:

• When an employee’s duties are directly dependent on weather conditions or are necessary to protect the health and safety of the public or any person.
• When an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours.
• When an employer cancels a shift at the employee’s request, 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.

The revised rules will be subject to a 30-day comment period that began on December 12, 2018. It is possible that the revised rules will be modified again based on public comments. In any event, it appears likely that final rules will be issued in 2019.