The New York State Department of Labor (“NYSDOL”) proposed regulations which, if adopted as proposed, would significantly expand the entitlement to “call-in pay” for employees in certain industries. Specifically, the proposed regulations would revise the call-in pay requirements of the Minimum Wage Order for Miscellaneous Industries and Occupations, to require employers to pay employees “call-in pay” for cancelled shifts and unscheduled shifts. The proposed regulations follow a series of public hearings held by the Department of Labor (“DOL”), dating back to September. A 45-day public comment period will begin once the regulations are published in the November 22, 2017 State Register. It is unclear at this time if final regulations will be identical to the proposed regulations or if changes will be made.

What do the Regulations Propose to Change?

Presently, covered employers are required to pay employees the lesser of four hours of “call-in pay,” or the number of hours in the employee’s regularly scheduled shift at the basic minimum hourly rate, any time an employee reports to work by request or permission of the employer.

Under the proposed regulations, employers covered under the Minimum Wage Order for the Miscellaneous Industries and Occupations are required to:

  • pay at least four hours of “call-in pay” to any employee who, by request or permission of the employer, reports to work (unless the employee reports for a regularly scheduled shift shorter than four hours, and that shift does not change from week to week; then the amount of call-in pay owed to that employee is the number of hours of the regularly scheduled shift)
  • pay two hours of “call-in pay” to any employee who is requested to work a shift that was not scheduled 14 days or more in advance (This does not apply to new employees; when a new or additional shift is added; or when an employee volunteers to take on a shift of another employee that otherwise met the 14 day advance scheduling requirement.)
  • pay at least four hours of “call-in pay” to any employee whose shift is cancelled within 72 hours of its scheduled start (unless the employee was regularly scheduled to work a shift shorter than four hours, and that shift does not change from week to week, then the amount of call-in pay owed to that employee is the number of hours of the regularly scheduled shift)
  • pay at least four hours of “call-in pay” to any employee who is required to call in to the employer within 72 hours of the start of their shift to confirm whether to report to work

The proposed regulations provide that where an employee is required to report to work, “call-in pay” should be calculated at the employee’s regular or overtime rate, as applicable (minus any allowances). With respect to the portion of “call-in pay” required when an employee does not report to work, “call-in pay” should be calculated at the basic minimum hourly rate (with no allowances permitted).

The proposed regulations expressly exclude employees covered by a valid collective bargaining agreement that expressly provides for call-in pay. In addition, call-in pay requirements, other than for reporting to work, would not apply in weeks where an employee earns more than 40 times the hourly minimum wage.

Although the apparent breadth of the latter of these two carve outs may well work to alleviate at least some of the concern of many employers planning for the implementation of these changes, we emphasize that the proposed regulations are not final. The final regulations may not match the published proposed regulations, so it is advisable to carefully review the final regulations that are eventually published by the DOL.