In addition to having to comply with the new Paid Family Leave Benefits Law, New York employers face two other significant changes in 2018 regarding wage and hour requirements. The State's minimum wage and minimum salary levels for overtime exempt employees will increase on December 31, 2017, and the New York State Department of Labor ("NYSDOL") is likely to adopt new regulations governing "call-in" pay that will affect their scheduling and on-call practices. This alert provides an overview of the minimum wage and salary changes, as well as the proposed call-in pay changes, so New York employers will be ready to comply when they take effect.

Minimum Wage and Exempt Salary Increases

The New York State minimum wage will increase on December 31, 2017, as detailed below.

The State's minimum salary levels for executive and administrative employees to be exempt from overtime will also increase on December 31, 2017, as follows:

  • New York City Large Employers (11 or more employees): $975.00 per week
  • New York City Small Employers (10 or fewer employees): $900.00 per week
  • Remainder of Downstate (Nassau, Suffolk and Westchester counties): $825.00 per week
  • Remainder of the State: $780.00 per week

There are also corresponding and proportional increases related to tipped wages, meal and lodging allowances, and wage allowances.

Proposed Changes to "Call-In" Pay

On November 22, 2017, the NYSDOL published proposed changes to the Miscellaneous Industries Wage Order (which covers all employers that are not exempt from the minimum wage law and that are not covered by the hospitality, building services and agriculture wage orders) that would expand the situations in which employers would have to pay employees additional wages or "call-in" pay related to scheduling and on-call practices.

Under the proposed regulations, employers would be subject to the following obligations:

1. Reporting to work

An employee who reports to work for any shift must be paid call-in pay for at least four hours, or the lesser number of hours that the employee normally works for that shift, so long as the employee's total hours worked, or that he or she is scheduled to work for that shift, do not change from week to week.

2. Unscheduled shift

An employee who reports to work for a shift not scheduled at least 14 days in advance must be paid an additional two hours of call-in pay.

3. Cancelled shift

An employee whose shift is cancelled within 72 hours of the scheduled start time must be paid at least four hours of call-in pay, or the lesser number of hours that the employee normally works for that shift, so long as the employee's total hours worked, or that he or she is scheduled to work for that shift, do not change from week to week.

4. On-call

An employee who is required to be available to report to work ("on-call") must be paid for at least four hours of call-in pay.

5. Call for schedule

An employee who is required to be in contact with the employer within 72 hours of the shift start time to confirm whether to report to work must be paid at least four hours of call-in pay.

An employee must be paid his or her regular or overtime rate of pay, whichever is applicable, for time of "actual attendance." Payments for other hours of call-in pay are calculated at the basic minimum hourly rate with no allowances, and such payments are not hours worked for purposes of determining overtime pay. The proposed regulations also prohibit offsetting call-in pay with leave time or payments to employees in excess of those required by the regulations.

The proposed regulations provide for the following four situations in which call-in pay is not required:

1. In any week in which an employee's wages exceed 40 times the applicable minimum wage rate, the employee is exempt from all of the on-call pay requirements, except the basic call-in pay requirement for "reporting to work" (#1 above).

2. The call-in pay requirement for a shift not scheduled at least 14 days in advance (#2 above) does not apply "to any new employee during the first two weeks of employment or to any regularly scheduled employee who volunteers 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."

3. The call-in pay requirement for a cancelled shift within 72 hours of the scheduled start of the shift (# 3 above) does not apply:

  • When an employer cancels a shift at the employee's request for time off; or
  • When the operations at the workplace cannot begin or continue due to an act of God or other cause not within the employer's control, including, but not limited to, a state of emergency declared by federal, state or local government, provided that where operations can begin or continue but staffing needs are reduced due to an act of God or other cause not within the employer's control, the 72-hour period is reduced to 24 hours for regularly scheduled employees.

4. The call-in pay requirements will not apply to employees covered by a valid collective bargaining agreement that expressly provides for call-in pay.

The proposed regulations define a "regularly scheduled employee" as an employee "who is scheduled at least fourteen days in advance for shifts consistent with a written good faith estimate of hours provided by the employer at the time of hiring (or at the time this section takes effect, whichever is later), which may be amended at the employee's request." "Volunteers to cover" is defined as accepting "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 consequences for any employee who does not extend or accept such request."

The proposed regulations are subject to a 45-day comment period that began when they were published on November 22, 2017. In addition to preparing for the new on-call regulations, retail and fast food employers in New York City must continue their efforts to comply with the recently effective Fair Workweek Law regulating employee scheduling in those industries.