NYS Department of Labor Issues New Set of State-Wide Predictable Scheduling Regulations

On December 12, 2018, the NYS Department of Labor (NYSDOL) issued sweeping new regulations concerning employee scheduling that will affect most employers in the state. The proposed regulations are designed to encourage predictable work scheduling. This effort follows the NYSDOL's release of a similar set of regulations over a year ago that were never finalized.

The proposed regulations are designed to address concerns that certain employer-scheduling practices"”i.e., shift cancellations, on-call requirements, and being sent home before the end of a scheduled shift"”create unfair difficulties for employees.

The proposed regulations cover a variety of events for which employers must provide "call-in pay," including when employees:

• Are required to report to work (i.e., "show up"), but are sent home early
• Are not provided at least 14 days' advance notice of their work shift (i.e., made to work an "unscheduled shift")
• Have their shift cancelled without at least 14 days' advance notice (i.e., experience a "cancelled shift")
• Are required to be available to report to work for a shift if requested (i.e., be "on-call")
• Are required to be in contact with their employer within 72 hours of the possible start of the shift to confirm whether to report to work (i.e., "call for schedule")

Call-in pay ranges from two to four hours at the minimum wage, depending on the circumstances.

There are a number of exceptions to the call-in pay requirements. Union employees who are covered by a collective-bargaining agreement that expressly provides for call-in pay are excluded from coverage. Other than the requirement to provide call-in pay for "show up" situations, employees whose weekly wages exceed 40 times the minimum wage are also excluded from coverage. Similarly excluded from coverage (other than the requirement to provide call-in pay for show up situations) are 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," and "whose assignments are subject to work orders or cancellations thereof," 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.

Additionally, no call-in pay is owed for cancelled shifts or for employees who work unscheduled shifts if there is a weather or other travel advisory and the employer offers employees the option of voluntarily reducing or increasing their scheduled hours, so they may stay home, arrive early, arrive late, depart early, or depart late.

Call-in pay is also not owed for a cancelled shift when the cancellation is at the employee's request or when operations cannot begin due to an "act of God" or other cause outside the employer's control.

Finally, employees who volunteer for an unscheduled shift are excluded from the call-in pay requirements applicable to unscheduled shifts.

The proposed regulations cover a range of industries but do not cover the hospitality industry; although some hospitality industry employers in New York City are subject to the New York City Fair Workweek Law, which sets out predictable scheduling rules for employees working in the fast food and retail industries.

The NYSDOL's new proposed scheduling regulations are subject to a 30-day comment period during which the NYSDOL will accept public comments. Comments are due by January 11, 2019, and can be emailed to hearing@labor.ny.gov.