On November 10, 2017, the New York State Department of Labor released proposed regulations which significantly change requirements for employee work schedules and the compensation employees receive for being on-call, called in and for cancelled shifts. The proposed regulations are currently open for comment. It is anticipated the proposed regulations will be finalized and effective early next year.
The proposed employee scheduling regulations, promulgated at the direction of Governor Cuomo as part of his agenda “to achieve nation leading success in workers’ rights”, are among the most expansive work schedule regulations in the nation. Predictive scheduling legislations has already been adopted statewide in Oregon, in several cities including San Francisco, Seattle, and New York City, and is currently being considered for adoption in thirteen other states. While this trend has come to the forefront due to the ”unpredictable” scheduling practices often prevalent in the retail and fast food industries, the proposed scheduling regulations in New York will affect most employers – the most notable exception being the hospitality industry.
The proposed regulations revise scheduling and pay requirements as follows:
Reporting to work: An employee who by request or permission of the employer reports for work on any shift shall be paid for at least four hours of call-in pay.
Unscheduled shift: An employee who by request or permission of the employer reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift shall be paid an additional two hours of call-in pay.
Cancelled shift: An employee whose shift is cancelled within 72 hours of the scheduled start of such shift shall be paid for at least four hours of call-in pay.
On-call: An employee who by request or permission of the employer is required to be available to report to work for any shift shall be paid for at least four hours of call-in pay.
Call for schedule: An employee who by request or permission of the employer is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.
The four hours of call-in pay for reporting to work and cancelled shifts may be reduced to the lesser number of hours that the employee normally works for the shift as long as the employee’s scheduled or actual hours worked for that shift do not change from week to week. The above proposed regulations do not apply to an employee’s first two weeks of employment and also do not apply when a shift is cancelled at an employee’s request or when an employee volunteers to cover an extra shift. The proposed regulations also provide an exception to when workplace operations cannot continue due to an “act of God” or an official state of emergency.
The proposed regulations do not apply to employees covered by a collective bargaining agreement that expressly provides for call-in pay. Certain provisions also would not apply during work weeks in which the employee’s wages exceed forty times the minimum wage rate.
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