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New York State Publishes Revised Proposed Regulations on Predictive Scheduling – Are you Ready?

On December 12, 2018, the New York State Department of Labor (“NYSDOL”) published revised proposed regulations on employer scheduling practices. These proposed regulations somewhat mirror New York City’s Fair Workweek Laws which have been in effect since November 2017, and which require certain fast food and retail employers to pay employees a “premium” for certain schedule practices.  The effective date has yet to be announced.

The proposed regulations require covered employers to pay employees for a minimum number of hours if the employer (i) fails to provide employees with 14 days’ advance notice of either their scheduled work shift or the cancellation of their scheduled work shift; (ii) requires an employee to work “on-call” or to call in up to 72 hours ahead of their potential next shift; or (iii) decides to send a non-exempt employee home after the employee was instructed to report to work.  The revised proposed regulations generally apply to all employees within the Miscellaneous Wage Order, which includes most employees except people such as babysitters; companions; taxi drivers; children’s camp counsellors; those employed by a Federal, State or municipal government; or those covered by other Wage Orders – like the one directed towards the hospitality industry; with some minor exceptions.

The NYSDOL published an initial version of these regulations in November 2017, but has now re-issued the proposed rules and provided several revisions. The present version provides clarification for many of the proposed rules, and includes definitions and explanations not previously provided.

Situations Where Call-in Pay is Required

The current proposed regulations require covered employers to pay employees call-in pay in the following five situations.   Note: an hour of “call-in pay” is calculated at the basic minimum hourly wage rate.  

  • Reporting to Work. When an employee reports to work for any shift, but is sent home before working at least four hours, he or she must be paid at least four hours of call-in pay, unless the shift itself was for less than four hours, in which case the employee must receive call-in pay for the number of hours in the shift.
  • Unscheduled Shift. When an employee reports to work for any shift that was not scheduled at least 14 days in advance, he or she must receive an additionaltwo hours of call-in pay (beyond the pay they receive for the hours worked).
  • Cancelled Shift. When an employee’s shift is cancelled by his or her employer within

14 days of the scheduled start of the shift, but more than 72 hours in advance, he or she must be paid at least two hours of call-in pay.  If, however, the shift is cancelled within 72 hours of the scheduled start of the shift, he or she must be paid at least four hours of call-in pay.

  • On-Call. When an employee is required to be “on call” and available to report to work for any shift, he or she must be paid at least four hours of call-in pay.
  • Call for Schedule. When an employee is required to be in contact with his or her employer within 72 hours of the start of a shift to confirm whether they will be required to report to work, he or she must be paid at least four hours of call-in pay, regardless of whether they are actually required to work that shift.

Exceptions and Clarifications

The revised proposal provides a number of exceptions where employees are not required to receive call-in pay, including:

  • When employees are covered by a valid collective bargaining agreement that expressly provides for call-in pay.
  • The requirements for unscheduled shifts, cancelled shifts, on-call employees and call for schedule employees do not apply when:
    • An employee’s weekly wages for the week containing the shift in question exceed 40 times the applicable basic hourly minimum wage rate.
    • An employee’s duties are directly dependent on weather conditions, or when an employee’s duties are necessary to protect the health or safety of the public or any person, or to employees whose assignments are subject to work orders, or cancellations of work orders; provided that such employees also receive weekly compensation that exceeds the number of compensable hours worked times the applicable basic minimum wage rate, with no allowances.

The revised proposal also clarifies a few terms that were left open to interpretation in the 2017 version. The 2017 version provided the “Unscheduled Shift” provision would not apply to new employees in their first two weeks of work, or to an employee who volunteers to cover a new or previously scheduled shift. The terms “volunteers”, “new shift” and “previously scheduled shift” were not defined, however.  The revised version:

  • Defines “new shift” as the first two weeks of an additional shift that increases the net staffing at a single workplace during the period of time covered by that shift;
  • Defines “previously scheduled shift” as a shift that would not have been subject to call-in pay if it had been worked by the originally-assigned employee; and
  • Defines “volunteers” as existing when the employee may refuse to cover the new or previously covered shift.

Safe Harbor

The revised version also provides a safe harbor to employers.  The safe harbor provides 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 that meets certain requirements upon hire. The proposed regulations do not tell you what such good faith estimate must include, but if it is anything like New York City’s requirement – it should be in writing and should set forth the number of hours an employee can expect to work per week for the duration of the employee’s employment and the expected dates, times, and locations of those hours.  The safe harbor also provides the same rebuttable presumption when a 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. Additionally, if no employee volunteers prior to the deadline, employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.

Although the regulations proposed by the NYSDOL are somewhat reminiscent of New York City’s Fair Workweek Laws, they are not nearly as restrictive.  Fortunately, the safe harbor and exceptions provided by the State will allow employers much more flexibility and ability to run their businesses than the New York City laws currently do.  In any event, though, New York State employers should pay attention to these potential new mandates.  If adopted, these regulations will require employers of many industries to adjust their scheduling policies and procedures. There has been a huge push for predictive scheduling initiatives in recent years and all signs point to these proposed regulations becoming law.  Employers should take the time to review their scheduling policies and procedures and ensure they are ready when these regulations are put into effect, whenever that date is decided.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com  or 203.454.0560.