Proposed Predictive Scheduling Regulations For New York

The New York State Department of Labor (“NYSDOL”) has recently issued new proposed regulations which impose additional requirements for “on-call” or “call-in” scheduling for employees. The new revised language was the NYSDOL’s response to public comments after the NYSDOL published its initial proposed regulations in November 2017. The present version of the proposed regulations now includes explanations and definitions not found in the previous proposed regulations, in addition to providing clarification of many of the proposed rules. Employers should note that currently there is no effective date for the revised proposed regulations.

Background:

The NYSDOL’s first proposed regulations were issued as a result of the rising concern that certain practices, such as unscheduled shift changes, on-call responsibilities and shift cancellations, created many problems for employees with multiple jobs, or who have family, childcare, or school commitments. Governor Andrew Cuomo instructed the NYSDOL to issue regulations to afford employees some protections against unpredictable scheduling that benefit employers.

Who Will Be Affected:

The NYSDOL’s revised proposed regulations will generally apply to all employees covered under the Miscellaneous Wage Order. However, certain employees such as companions, babysitters, children’s camp counselors, taxi drivers, hotel and restaurant employees, and those employed by a municipal, State or Federal government are excluded from these new proposed regulations.

Revised Proposed Regulations:

Under the NYSDOL’s current proposed regulations, employees will be entitled to, among other things, “call-in pay” calculated at the basic minimum hourly wage, in the following five scenarios.

  • Reporting To Work: When an employee reports to work for any shift, but is sent home prior to working at least four hours, the employer must pay the employee at least four hours of “call-in pay.” If the scheduled shift was for fewer than four hours, the employee is entitled to “call-in pay” for the number of hours in the shift. Under current New York law, an employee would not be entitled to “call-in pay” if the employee’s regular rate was sufficiently above the minimum wage so the amount the employee earned in excess of the minimum wage was more than the required “call-in pay.” The revised proposed regulations now eliminate that exception, so all covered employees will be entitled to “call-in pay” if they report to work but are sent home, regardless of their wage rate.
  • Canceled Shifts: If an employer cancels an employee’s shift without at least 14 days’ notice, the employee is entitled to two hours of “call-in pay” at minimum wage. If an employer cancels a shift with less than 72 hours’ notice, employees must be paid four hours of “call-in pay” at minimum wage. This regulation removes an employer’s ability to instruct employees not to report to work because they are overstaffed and don’t want to pay all employees or because it is a slow day for the business.
  • Unscheduled Shifts: If an employee is required to work a shift and did not receive at least 14 days’ advance notice from the start of the scheduled shift, the employer is required to pay the employee an additional two hours of “call-in pay” at minimum wage. This revised proposed regulation will hopefully encourage employers to give employees a minimum of two weeks’ notice of scheduled shifts to afford employees ample time to schedule childcare or reschedule any personal commitments.
  • On-Call Responsibilities: If an employee is required to be “on-call,” meaning the employee is available to report to work for a shift, the employee is entitled to at least four hours of “call-in pay” at minimum wage.
  • Call For Schedule: If an employer requires employees to be in contact with the employer within 72 hours prior to the start of a shift to confirm if the employee must report to work, the employee is entitled to four hours of “call-in pay” at minimum wage.

Exceptions:

Employers should note that the revised proposed regulations contain many exceptions. Some exceptions to the revised proposed regulations include the following:

  • Employees subject to a valid collective bargaining agreement that expressly provides for call-in pay will not be subject to the current proposed regulations.
  • An employee who earns more than 40 times the minimum wage during the week will be excluded from most of the requirements, except for show-up pay.
  • When an employee’s duties are directly dependent on weather conditions, or are necessary to protect the safety or health of the public or any person, or if an employee’s assignment is subject to a work order or the cancellation of a work order, those employees are excluded from the revised proposed regulations, other than the requirement for show-up pay.
  • Employees whose shifts were cancelled due to an act of God or other causes not within the employer’s control will not be covered by the current proposed regulations.
  • If an employee volunteers for an unscheduled shift, that employee will also be excluded from the revised proposed regulations. The revised proposed regulations set forth the proper documentation employers may use to create a record of the employee’s choice to volunteer for the unscheduled shift.
  • Newly hired employees during their first two weeks of employment.
  • Any individual who does not fall under the proposed regulations’ definition of “employee” will also be excluded.

Clarifications:

The NYSDOL’s current proposed regulations also provides clarifications for some terms left open to interpretation in the 2017 proposed regulations. The 2017 version of the NYSDOL’s proposed regulations stated that the “unscheduled shift” provision would not apply to newly hired employees in their first two weeks of employment, or to any employee who volunteered to cover a new or previously scheduled shift. Additionally, the 2017 proposed regulations failed to define the terms “new shift”, “volunteers”, or “previously scheduled shift.” The revised proposed regulations now provide the following definitions:

  • “New shift” is defined as the first two weeks of an additional shift that results in a net increase in staffing at a single workplace during the period of time covered by such shift.
  • “Volunteers” are defined as employees who may refuse to cover the new or previously scheduled shift.
  • “Previously scheduled shift” is defined as a shift that would not have been subject to unscheduled shift “call-in pay” if worked by the employee who was originally assigned to work that shift.

Safe Harbor Provision:

Unlike the 2017 proposed regulations, the current proposed regulations include a “safe harbor” provision. Generally, this provision allows an employer to assign an employee to cover a shift without any additional “call-in pay” for an unscheduled shift by creating the presumption that an employee volunteered to cover a new or previously scheduled shift. The rebuttable presumption that an employee volunteered is created when an employer provides a written good faith estimate of hours to all employees upon hiring (or after the effective date of the regulations for previously hired employees), 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. Should no employee volunteer prior to the deadline, the employer may then assign an employee to cover the shift without being required to pay the additional “call-in pay” required for unscheduled shifts.

Penalties:

An employer’s failure to comply with the current proposed regulations will be subject to the penalty provisions included in New York Labor Law Article 19 regarding minimum wages. Section 662 of Article 19 of the New York Labor Law provides that any employer, officer, or agent of any corporation, partnership, or limited liability company, who underpays an employee, shall be found guilty of a misdemeanor and upon conviction will be fined between $500 and $20,000 and may face up to one year’s imprisonment. A second or subsequent offense within six years will be a felony. Employees are also permitted to recover any underpayments from employers.

Employers in New York City:

It should be noted that the current proposed regulations do not include an explanation on the implications of the state proposed regulations on already-implemented laws, such as the NYC Fair Workweek Law, which govern predictive scheduling. There are also certain provisions in the current proposed regulations that conflict with sections included in the NYC Fair Workweek Law. For example, the NYC Fair Workweek Law does not permit certain retail employers to require employees to work on-call, while the current proposed regulations provide an employee is entitled to at least four hours of “call-in pay” at minimum wage when that employee is required to be on-call.

Next Steps For Employers:

Once an effective date for the proposed regulations is released, employers should draft and distribute a predictive scheduling policy. The policy should identify all employee rights under the proposed regulations, including the right to file a complaint. Additionally, the policy should also state how an employee will consistently receive his or her schedule. It is also a good idea to include who employees can go to if they have questions or concerns regarding their schedules.

Employers should also train all employees who deal with scheduling. Whether a business will violate the proposed regulations will likely be the result of whether the employees responsible for setting employee schedules understand the regulations.

Employers may also consider implementing and maintaining a notice system that can be archived. This would provide employers with a record of all communications made to employees regarding scheduling or shift changes in the event an employee makes a complaint or brings an action under the proposed regulations.



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