Seyfarth Synopsis: The NYSDOL recently announced that it will no longer pursue regulations that, if adopted, would have required most NYS employers to provide call-in pay to employees for hours they do not work under a variety of circumstances.
The announcement comes as a surprise to many. Ensuring that employers across practically all industries provide their employees with predictable work schedules had been part of the New York State Department of Labor’s (“NYSDOL” or “Department”) agenda since September 2017. After holding four public hearings on the matter, in November 2017, the Department issued its first set of proposed rules, which would have significantly expanded entitlement to call-in pay for all employees subject to the Minimum Wage Order for Miscellaneous Industries and Occupations. After about a year of inaction following the initial set of proposed regulations and a comment period pursuant to the rulemaking process, the Department announced a revised set of proposed regulations in December 2018.
Both proposals contained wide-ranging scheduling circumstances under which a protected employee would be entitled to call-in pay. Considering the State’s long-standing effort, all signs pointed to a near certainty that some form of call-in pay regulations would be finalized by the NYSDOL in the earlier half of this year.
Last week, on its website, the NYSDOL announced that “[b]ased on extensive feedback in the subsequent comment period, it was clear the Department’s initial intent to support workers while being fair to businesses was viewed as a one-size-fits-all approach that was not appropriate for every industry.” According to the Department, “significant issues remained, and the revisions did not achieve the balance of certainty and flexibility for either workers or businesses.”
Although employers across most industries statewide can take a breath, it is important to remember that the Department’s latest does not obliterate all call-in pay obligations of employers subject to the Miscellaneous Industries and Occupations Minimum Wage Order: covered employers must still pay non-exempt employees at least four hours’ pay, or the numbers of hours’ pay for their regularly scheduled shift, if less, at the State minimum wage, on any day employees report to work and are thereafter sent home. In addition, employers subject to the Hospitality Industry Wage Order, and New York City retail and fast food employers subject to the stringent scheduling requirements of the City Fair Workweek Law, remain bound by their respective obligations pursuant to those authorities.
Also noteworthy is that the Department did not close the door on statewide call-in pay reform in its entirety -- only via the administrative rulemaking process. In letting its current effort expire, the Department hinted that it would “re-evaluate in the future, likely in concert with the [State] Legislature.” We will continue to monitor call-in pay reform efforts in all governmental arenas, and advise affected employers of any updates.