New York State Department of Labor Issues Revised Proposed "Predictive Scheduling" Regulations

As we previously reported, the New York State Department of Labor (“NYSDOL”) issued its first round of proposed regulations in September 2017, which were not adopted. Thereafter, at Governor Andrew Cuomo’s direction, public hearings were held on employee scheduling concerns. The NYSDOL used these hearings to solicit public comment on how best to address what is known as “just-in-time,” “call-in” or “on-call” scheduling, common practices that allow employers to schedule or cancel workers’ shifts. On December 7, 2018, the NYSDOL filed a revised proposed rulemaking to address these predictive scheduling concerns. The proposed rules would revise the call-in pay requirements of the Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR 142 at §§ 142-2.3 & 3.3).

Under the proposed regulations, New York employers will be required to provide call-in pay to employees as follows:

1. Reporting to work: An employee who by request or permission of the employer reports for work on any [day] shift shall be paid for at least four hours, (or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage) 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. Where an employer provides a weekly schedule, 14-day period referenced in this section may be measured from the last day of the schedule.

3. Cancelled shift: An employee whose shift is cancelled by the employer shall be paid for at least two hours of call-in pay, if the shift is cancelled within 14 days, or for at least four hours of call-in pay if the shift is cancelled within 72 hours, in advance of the scheduled start of such shift.

4. On-call: An employee who is required by the employer 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 is required by the employer 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.

In these circumstances, call-in pay will be calculated at the employee’s regular rate or overtime rate of pay, whichever is applicable (minus any allowances permitted) for the employee’s actual attendance. 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. Pursuant to the regulations, the four hours of call-in pay for reporting to work and for cancelled shifts may be reduced to the lesser number of hours that the employee is scheduled to work and normally works, for that shift. Call-in pay shall not be offset by the required use of leave time.

Exceptions

The new proposed regulations apply to most New York State employers who are covered by the Minimum Wage Order for the Miscellaneous Industries and Occupations. However, there are exceptions which include the following:

  • Employees subject to a collective bargaining agreement that expressly provides for call-in pay.
  • Employees who earn more than 40 times the minimum wage during the week are excluded from most of the new requirements (with the exception of the requirement for show-up pay).
  • Employees whose duties are directly dependent on weather conditions, whose duties are necessary to protect the health or safety of the public or any person, or whose assignment are subject to work orders or work order cancellations also are excluded from the new requirements (other than the new version of the preexisting Show-Up Pay requirement).
  • Employees who volunteer for an unscheduled shift are excluded from the Unscheduled Shift requirement.
  • Individuals who do not meet the regulations’ definition of “employee” remain excluded from the predictive scheduling requirement.

Safe Harbor

The proposed regulations also provide a “safe harbor” provision which provides that there shall be a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if the employer provides a written good faith estimate of hours to all employees upon hiring, or after the effective date of this section for previously hired employees, which may be amended at the employee’s request or upon two weeks’ notice by the employer, and if the request to cover a new or previously scheduled shift is either: (i) made by the employee whose shift would be covered; or (ii) made by the employer in a written communication to a group of employees requesting a volunteer from among the group and identifying a reasonable deadline for responses. If no employee volunteers prior to the deadline, the employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.

The NYSDOL’s full rulemaking package is published in the December 12, 2018 issue of the New York State Register. The revised proposed regulations are not final and will be subject to a comment period for 30 days from that publication date. To submit a comment on this proposed regulation, please email hearing@labor.ny.gov. We will continue to monitor developments of the proposal and keep you apprised of same.