New York employers may soon be subject to new scheduling and pay requirements pertaining to their non-exempt employees who work “on-call” shifts. New York Governor Andrew Cuomo recently announced that the New York State Department of Labor (NYDOL) is advancing regulations on “just-in-time” or “on demand” scheduling, which allows employers to schedule employees’ shifts shortly before they start.

As the law stands today under the Minimum Wage Order for Miscellaneous Industries, non-exempt employees who report to work for on-call shifts are entitled to a minimum of four hours of pay at the basic minimum hourly wage. According to prior NYDOL guidance, employers may offset these call-in payments with amounts paid above the minimum wage and overtime rates in a given workweek. For example, if the amount paid to an employee for the workweek exceeds the minimum and overtime rate for the number of hours worked and the minimum rate for any call-in pay owed, no additional payment for call-in pay is required.

Under the newly-proposed regulations, employers will be subject to the following requirements:

  1. Employees who report to work for a shift not scheduled at least 14 days in advance will be entitled to an additional two hours of call-in pay.
  2. Employees whose shifts are cancelled within 72 hours of the scheduled start time will be entitled to at least four hours of call-in pay. Those four hours may be reduced to the number of hours that an employee typically works for a call-in shift if the employee’s total hours worked or scheduled to work are consistent on a week-to-week basis.
  3. Employees who are required to be on-call and available to report for any shift will be entitled to at least four hours of call-in pay.
  4. Employees who are required to contact their employer within 72 hours of the start of a shift to confirm whether to report or not will be entitled to four hours of call-in pay.

The call-in payments described above will be calculated at the minimum wage rate with no allowances for meals, lodging, and utilities. Such payments shall not be considered hours worked for purposes of calculating overtime pay. Notably, the proposed requirements will not apply to employees who are covered by a collective bargaining agreement that expressly provides for call-in pay.

The proposed regulations appeared in the November 22, 2017 State Register and are subject to a 45-day comment period. We will continue to track the progress of these regulations and update our readers with any further developments.