NYS DEPARTMENT OF LABOR PROPOSES NEW ON-CALL AND CALL-IN SCHEDULING REGULATIONS

On November 10th Governor Andrew M. Cuomo announced proposed regulations that will be welcomed by non-exempt, On-call and Call-in employees who receive short notice that they are needed at work, or that their shift has been cancelled. The proposed Labor Department  regulations on "just in time", "call-in" or "on-call" scheduling, common practices that allow employers to schedule or cancel workers' shifts just hours before or even after they start. As pointed out in alert issued by the law firm of Nixon Peabody, “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.”. 

IAC’s HR Committee will discuss the proposed regulations at its meeting on Friday, December 8 at 10:00. IAC has also been asked by OPWDD for an estimate of the cost of the new regulations; which is about as easy to estimate as the costs of the upcoming threshold increase for exempt/non-exempt employees.

The proposed regulations can be found at: https://labor.ny.gov/workerprotection/laborstandards/scheduling-regulations.shtm

For a more plain English edition: https://labor.ny.gov/workerprotection/laborstandards/pdfs/employee-scheduling-proposed-rule.pdf

And to determine what industries are exempt (restaurants, hospitality and farming): https://www.labor.ny.gov/legal/counsel/pdf/hospitality-wage-order-frequently-asked-questions.pdf

The key points include:

(a) Call-in pay shall be provided as set forth below.

(1)   Reporting to work. An employee who by request or permission of the employer reports for work on any shift shall be paid for at least four hours of call-in pay.

(2)    Unscheduled shift. An employee who by request or permission of the employer reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift shall be paid an additional two hours of call-in pay.

(3)   Cancelled shift. An employee whose shift is cancelled within 72 hours of the scheduled start of such shift shall be paid for at least four hours of call-in pay.

(4)   On-call. An employee who by request or permission of the employer is required to be available to report to work for any shift shall be paid for at least four hours of call-in pay.

(5)   Call for schedule. An employee who by request or permission of the employer is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.

(b) Calculation of call-in pay. Call-in pay shall be calculated as follows.

1.     Actual attendance. Payments for time of actual attendance shall be calculated at the employee’s regular rate or overtime rate of pay, whichever is applicable, minus any allowances permitted under this Part.

2.     Minimum rate. Payments for other hours of call-in pay shall be calculated at the basic minimum hourly rate with no allowances. Such payments are not payments for time worked or work performed and need not be included in the regular rate for purposes of calculating overtime pay.

3.     Offsets. Call-in pay shall not be offset by the required use of leave time, or by payments in excess of those required under this Part.

4.     Shorter work days. The four hours of call-in pay for reporting to work and for cancelled shifts under paragraphs (1) and (3) of subdivision (a) of this section may be reduced to the lesser number of hours that the employee normally works for that shift, as long as the employee’s total hours worked, or scheduled to work, for that shift do not change from week to week.

However, the proposed regulations would NOT affect businesses subject to the hospitality, farming and building service industry wage orders, or those covered by a valid collective bargaining agreement.

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