Big changes may be in store for employers in New York who require employees to be “on call” or who are accustomed to making quick changes to employee schedules, including canceling shifts when customer or client demand changes.

On November 10, 2017, the New York State Department of Labor (NYDOL) released the text of anticipated proposed regulations to the wage order covering miscellaneous industries and occupations (which encompasses most employers other than restaurants and hotels). The proposed regulations address employer scheduling practices, including schedule changes and “on-call” time.

The proposed regulations would revise the Miscellaneous Industries Wage Order’s call-in pay requirements. They also would impose the following new requirements on employers:

1. An employee who reports to work for a shift not scheduled 14 days in advance must be paid an additional two hours of call-in pay.
2. An employee whose shift is canceled within 72 hours of the scheduled start time must be paid at least four hours of call-in pay. The four hours of call-in pay may be reduced to the lesser number of hours that the employee normally works for the particular shift, as long as the employee’s total hours worked, or scheduled to work, for that shift do not change from week to week.
3. An employee who is required to be available to report to work (“on-call”) must be paid at least four hours of call-in pay.
4. An employee who is required to contact the employer and confirm whether to report to work within 72 hours of the shift start time must be paid at least four hours of call-in pay.

The proposed regulations explain that an employee must be paid his or her regular rate or overtime rate of pay, whichever is applicable, for time of “actual attendance.” For other hours of call-in pay, however, payment is calculated at the basic minimum hourly rate with no allowances. These payments are not hours worked for purposes of overtime pay.

Further, contrary to prior NYDOL guidance interpreting the current regulations, employers can no longer offset payments to employees in excess of the minimum wage against these obligations.

Exceptions to the Proposed Regulations

The proposal provides four exceptions.

First, the proposed regulations provide for exceptions to the new call-in pay requirements during workweeks where the employee earns wages that exceed 40 times the applicable basic hourly minimum wage rate. For example, in 2018, the minimum wage for employers outside of New York City, Long Island, and Westchester will be $10.40 per hour. Accordingly, an employee earning more than $416.00 per week and working outside of those regions would be excluded from most of the new regulations, but not the basic requirement to pay four hours of call-in pay for any employee who actually reports to work and is sent home (unless the employee’s normal schedule is less than four hours). This threshold for exclusion will be higher in the downstate regions, where the 2018 minimum wage will be higher.
 
Second, the additional call-in pay required for a shift not scheduled 14 days in advance does not apply “to any new employee during the first two weeks of employment or 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.”
 
Third, the call-in pay required for cancellation of a work shift within 72 hours of the shift (#3 above) does not apply in the following situations:

• When an employer cancels a shift due to an employee’s request for time off.
• 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.
• Where operations can begin or continue but staffing needs are reduced due to an act of God or other cause not within the employer’s control, the 72-hour period is reduced to 24 hours for regularly scheduled employees.

The proposed regulations define a “regularly scheduled employee” as one “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 this section takes effect, whichever is later), which may be amended at the employee’s request.”
 
Last, the proposed regulations will not apply to employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.

Comment Period

The proposed regulations will appear in the November 22, 2017, issue of the State Register, and will be subject to a 45-day comment period after publication.

New York City Fair Workweek Law

The proposed regulations follow statements from the Cuomo Administration questioning the utility of the Fair Workweek Law in New York City. (For details on the Law, see our articles, New York City Issues Proposed Rules for Fast Food, Retail Workers Scheduling Law and Mayor Signs Major Workplace Reforms for Fast Food & Retail Workers.) As the state’s proposed regulations do not appear to affect the fast food industry, fast food industry employers must continue to prepare for the New York City legislation.

It is also unclear at this time whether the state’s proposed regulations are intended to preempt the portions of the Law applicable to certain retail employers. The Law prohibits retail employers from requiring their employees to be on-call, from canceling a shift within 72 hours, and from requiring an employee to work an additional shift within 72 hours of the beginning of the shift without written consent. Additional guidance regarding this issue may be issued by the New York State Department of Labor, the New York City Department of Consumer Affairs, or another agency. Pending such guidance, retail employers in New York City must prepare for compliance with both the Law and the New York State regulations, when they are finalized.

A hearing regarding the proposed regulations to implement the New York City Law is scheduled for November 17, 2017.

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