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Time Is Running Out! New Employee Scheduling Regulations Soon To Take Effect

Governor Andrew M. Cuomo announced on November 10, 2017 that the New York Department of Labor (NYSDOL) will advance new regulations that address “just in time”, “call-in”, or “on-call” scheduling.  Various industries have adopted these types of scheduling practices allowing employers to cancel or schedule workers’ shifts merely hours before or even after they start.  These practices often result in workers rushing to find child care or force them to miss important family commitments, classes or appointments.  The new regulations aim to limit an employers’ ability to require an employee to be available to work only if needed, and to either wait to be contacted by the employer or contact the employer to see if they must report to work.  The proposed regulations apply to all industries and occupations that are covered by the Minimum Wage Order for Miscellaneous Industries and Occupations for nonexempt employees.  The proposed regulations will not apply to employees covered by a valid collective bargaining agreement that expressly covers call-in pay.  Once finalized, the regulations will apply statewide.

Under the proposed regulations, employers would be mandated to provide their employees with 14-day advance notice of their schedules.  Employers will be required to pay employees 2 additional hours of call-in pay at the minimum wage rate if the employee is required to work hours that were scheduled less than 14 days before the scheduled time to report.  Additionally, call-in employees must receive four hours of call-in pay: when a shift is cancelled less than 72 hours prior to its start; when the employee is obligated to contact the employer less than 72 hours before the shift to find out if he/she must report for the shift; and, when the employee is required to be on-call to work the shift.

The following are examples of how the proposed regulations would be applied:

  1. If an employer sends an employee home after working only 1 hour, then the employer must pay four hours of call-in pay, with the first hour of actual attendance at the employee’s regular rate of pay and 3 additional hours at the minimum wage.

  2. If an employee works a shift scheduled less than 14 days in advance, then the employee is entitled to 2 hours of call-in pay at the minimum wage, in addition to the employee’s regular wages earned during the shift.

  3. If an employer cancels a shift less than 72 hours before the shift is scheduled to begin, then the employer is required to pay 4 hours of call-in pay at the minimum wage.

  4. If an employee is required to be on-call but ends up not working, then the employee must receive 4 hours of call-in pay at the required minimum wage.

  5. If an employer asks an employee to call in to check if they are required to work less than 72 hours before a shift begins, then the employer must pay the employee an additional 4 hours of call-in pay at minimum wage in addition to any earned wages.

Employers should take note that call-in pay premiums would not apply in the follow situations:

  1. If an employee agrees to volunteer to work a new and additional shift during the first two weeks that the shift is worked.

  2. During the first two weeks of employment of a new employee.

  3. If an employee requests time off and the employer cancels a shift.

  4. If an employer is unable to operate as a result of inclement weather or other emergency conditions, provided that the employer gives 24-hour advance notice of shift cancellations when operations are able to continue but staffing needs are reduced.

  5. If an employee chooses to volunteer to cover a coworker’s shift scheduled at least 14 days in advance.

  6. Employers should pay attention to these fast approaching regulations.

PMP is here to help your business take the necessary steps to implement the new employee scheduling regulations once finalized.

Article Prepared By:

Haley Trust, SilvermanAcampora


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