The New York State Department of Labor (the “NYSDOL”) has proposed regulations revising the “call-in” pay requirements of the Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”) (the proposed regulations can be found here). Covered employees would be entitled to call-in pay where they: (i) report to work but work fewer than four hours; (ii) work an unscheduled shift with less than 14 days’ notice; (iii) have their shift cancelled with less than 72 hours’ notice; (iv) are required to be available to report to work; or (v) are required to contact the employer within 72 hours of the start of the shift to confirm whether they must report to work.

These proposed regulations are part of the continued effort by state and local jurisdictions to limit the manner and means by which employers schedule their employees and efficiently operate their businesses. The comment period for the proposed regulations ends on January 22, 2018, after which it is likely that the regulations will be adopted in early 2018. Comments must be e-mailed to the NYSDOL at hearing@labor.ny.gov.

What Is The Current Law Regarding Call-In Pay?

The Wage Order covers all New York employees, except for employees subject to other wage orders, such as the Hospitality Industry Wage Order (regulating restaurants and hotels), the Wage Order for Farm Workers, the Wage Order for the Building Service Industry, and other circumstances described below. The current regulations under the Wage Order require employers to pay an employee who reports for work on any day for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the New York State minimum hourly wage.

What Are The Proposed Regulations Regarding Call-In Pay?

Subject to the exceptions described below, the proposed regulations would require employers to pay:

1. Four hours of call-in pay if: (a) the employee reports to work on any shift; (b) the employee’s shift is canceled less than 72 hours before the start of the shift (this is reduced to 24 hours where staffing needs are reduced due to an act of God or other cause not within the employer’s control – i.e., weather-related cancellations); (c) the employee is required to be available to report to work; or (d) the employee is required to contact the employer less than 72 hours before a shift to confirm whether to report to work.

2. Two hours of call-in pay if the employee reports to work for any shift for hours that were not scheduled at least 14 days in advance of the shift. The proposed regulations would prohibit employers from offsetting call-in pay by required use of leave time. Moreover, if an employee who reports to work or who had a canceled shift would have normally worked less than four hours for that shift, the call-in pay may be reduced to that lesser number of hours so long as the employee’s hours for that shift do not change from week to week.

How Would Employers Be Required To Calculate Call-In Pay?

The proposed regulations would require employers to calculate call-in pay as follows:

  • With respect to shifts for which the employee actually reported to work and performed services, employers must pay the employee’s regular rate or overtime rate of pay, whichever is applicable; and
  • With respect to the other call-in pay scenarios, employers must pay the basic minimum hourly rate with no allowances (notably, these payments are not included in the employee’s regular rate of pay for purposes of calculating overtime since they are not for time worked).

Who Would Be Covered By The Proposed Regulations? Significantly, the law would not apply to all employees in all circumstances.

First, the regulations would not apply to employees covered by a collective bargaining agreement that expressly provides for call-in pay.

Second, the regulations would not apply to employees during workweeks in which their weekly wages exceed 40 times the applicable basic minimum wage, except for an employee’s entitlement to four hours of call-in pay when reporting to work.

Third, new employees during their first two weeks of employment would not be entitled to call-in pay if they report to work for hours that were not scheduled at least 14 days in advance.

Fourth, regularly scheduled employees would not be entitled to call-in pay if they volunteer to cover: (i) a new and additional shift during the first two weeks that the shift is worked; or (ii) a shift that had been scheduled at least 14 days in advance to be worked by another employee. Under the proposed regulations, a “regularly scheduled employee” would mean “an employee who is scheduled at least 14 days in advance for shifts consistent with a written good faith estimate of hours provided by the employer at the time of hiring”; and, “volunteers to cover” would mean “acceptance of any request from another regularly scheduled employee or of an open request from the employer that is extended to all eligible employees, with no penalty or consequence for any employee who does not extend or accept such requests.”

Fifth, an employee would not be entitled to call-in pay if the employer cancels a shift: (i) at the employee’s request for time off; or (ii) when operations at the workplace cannot begin or continue due to an act of God or other reason outside the employer’s control.

What Can Employers Do to Prepare?

The comment period for these proposed regulations expires on January 22, 2018. Notwithstanding the comment period, we expect that the regulations will be adopted without substantive revisions.

Accordingly, employers should take proactive steps to comply with these regulations, including: (i) training managers and payroll employees on the proposed regulations and their exceptions; (ii) working with their payroll providers to implement automatic procedures and guidelines to ensure that employees are receiving call-in pay when applicable; (iii) providing employees with at least 72 hours’ notice of shift cancellations and on-call scheduling; (iv) providing employees with good faith estimations of their schedules on at least 14 days’ notice; (v) preparing for and budgeting for any financial impact that may result from a need to continue to utilize on-call or call-in scheduling; (vi) tracking coverage needs to ensure that they are not required to change shifts on short notice or alter good faith estimates to their employees; and (vii) reexamining scheduling practices to ensure compliance.