Labor & HR Committee Update

Staff Contact: Frank Kerbein
November 13, 2017

Hello Everyone:

Below you will find information regarding new developments in human resource management. Feel free to contact me directly if you would like any additional information or if you would like to discuss potential impacts and compliance strategies. I can be reached on the HR Line (800) 332-2117 or at frank.kerbein@bcnys.org.

DOL Releases New Rules Regarding Employee Scheduling

Today the NYS Department of Labor has released draft regulations aimed at curbing certain employer staffing practices.  Specifically, 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:

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:

It was initially presented to The Business Council that these regulations would preempt recent New York City legislation regarding predictive scheduling in the retail and fast food industries. The Department has since backtracked on that position. At this date preemption is uncertain.

It is anticipated that these 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 me know your thoughts as soon as possible for inclusion in those comments.

New Information Regarding Paid Family Leave and Public Employers

As a public employer, you have the option to provide Paid Family Leave to your employees at any time. Public employers who currently provide disability insurance have a few additional considerations and near-term requirements. However, you have some things to do in the near term:

For Public Employers Who Currently Provide Disability Benefits:

If you decide to opt in to Paid Family Leave:

If you are not opting in to Paid Family Leave:


For most private employers, Paid Family Leave will be added to their existing disability insurance policies. If you are an employer who currently carries disability insurance, your insurer may automatically add Paid Family Leave coverage to your 2018 disability policy. However, as a public employer, you are not required to add Paid Family Leave insurance to your existing policy; you must actively elect to opt in.

For Public Employers Who Do Not Currently Provide Disability Benefits:

If you decide to opt in to Paid Family Leave:

If you are not opting in to Paid Family Leave:

Obtain Insurance Coverage:

If and when you decide to opt in, Paid Family Leave insurance coverage may be secured by:

Public employers that offer disability benefits through an insurance policy may not self-insure for Paid Family Leave.  Coverage must be maintained for at least one year and may only be canceled after providing 12 months’ notice to all affected unrepresented employees and to the Workers’ Compensation Board.

Paying for Paid Family Leave:

Employers may collect the insurance premium cost through employee payroll contributions or pay the premium themselves.  The payroll contribution rate is set every year to match the cost of insurance coverage. The contribution rate for 2018 is 0.126% of an employee’s weekly wage, capped at 0.126% of the New York State Average Weekly Wage.

A public employer must notify all employees who will be required to make contributions and the NYS Workers' Compensation Board 90 days before the first Paid Family Leave employee deduction is made.

More information and resources for employers are available at www.ny.gov/PaidFamilyLeave.  If you have specific questions regarding the December 1 notification deadline or other questions about opting in, please write to PFLinquiries@wcb.ny.gov. You can also contact the Paid Family Leave Helpline at (844) 337-6303.