This Week in Government Affairs
Staff Contact: Ken Pokalsky
November 10, 2017
DOL Releases New Rules Regarding Employee Scheduling
Today, the NYS Department of Labor released draft regulations aimed at curbing certain employer staffing practices. Specifically, the regulations center on the practices of “on-call” and “call-in” scheduling. These proposed rules would revise the call-in pay requirement of the Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142).
In brief, these rules would:
- Continue the current call-in pay practice of paying a minimum of four hours pay for employees who report to work and for whom no work is available.
- Require that employers pay workers who come to work for a shift not scheduled at least 14 days in advance an addition 2 hours of call-in pay
- Require employers to pay workers who have a shift cancelled less than 72 hours prior to the start of that shift an additional 4 hours of call-in pay
- Require employers who ask workers to call within 72 hours of the start of the shift to confirm whether to report to work or not to pay an additional 4 hours of call-in pay.
Call-in pay will be calculated at the basic minimum wage for your area and employer size. It is not considered hours worked for the purposed of calculating overtime.
For example, in 2018 (when these rules are likely to be in place) if an Upstate employer asks an employee to work a shift which was not scheduled at least 14 days in advance – the employer must pay that worker an addition $20.80 (2 hours x the minimum wage - $10.40).
There are some exceptions. They are:
- Employees during work weeks when their weekly wages exceed 40 times the applicable minimum wage (For upstate employees in 2018 that would be in excess of $416 per week; 40 x $10.40)
- Employees covered by a collective bargaining agreement that expressly provides for call-in pay
- New employees during their first two weeks of employment
- Regularly scheduled employees who “volunteer to cover” for a shift scheduled to be worked by another employer
- Certain provisions for shifts cancelled due to an act of God
The State has informed us that these new rules are intended to preempt NYC predictive scheduling laws effective earlier this year.
The proposed rules will appear in the November 22nd edition of the State Register. Interested parties will have 45 days to comment. The Business Council will be submitting comments on behalf of our members and we want to know how these rules would affect your staffing practices. Please let Frank Kerbein know your thoughts as soon as possible for inclusion in those comments. You can reach Frank at email@example.com.