The New York State Department of Labor has issued new, proposed regulations regarding “just-in-time,” “call-in,” and “on-call” pay – or pay required when an employer unexpectedly cancels a covered employee’s shift or calls them into work, or requires them to be on-call. The draft regulations supplement the state’s existing Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”) call-in pay rules, which currently provide that a covered employee who reports to work for a scheduled shift must be paid for either four (4) hours or the regular number of hours the employee normally works during that shift, whichever is less, at the applicable minimum hourly wage (as set by New York DOL regulation). The new regulations maintain this requirement, but expand the circumstances in which an employer must pay for time not worked. Specifically, if the new regulations are approved, employers would be required to pay four (4) hours of minimum hourly wage to any employee: a) whose shift is canceled within seventy-two (72) hours of that shift, b) who is required to be available to work, i.e., “on-call,” for a specific shift but doesn’t actually work, and c) who is required to contact their employer within seventy-two (72) hours of a shift to confirm whether to report to work for that shift, and who does not actually work the shift. In addition, the regulations add a requirement that any employee who is required by their employer to report for a shift for which they were not previously-scheduled at least fourteen (14) days in advance of the shift must be paid for two (2) hours of “call-in” pay at the applicable minimum hourly wage. The two (2) hour call-in pay is owed in addition to the amounts the employee is owed for time actually worked. Hours actually worked by an employee under these regulations would be paid at an employee’s regular rate of pay, and any “call-in” or short notice pay are not included as hours worked when determining whether an employee worked overtime. Further, employers may not offset the four (4) hour or two (2) hour pay with paid leave, or take a credit using other payments to an employee that exceed the applicable hourly minimum wage.
The proposed regulation would apply to all employers except those subject to other, industry-specific wage orders, including those in hospitality, building, and agriculture industries, or otherwise exempt from the Wage Order. All employees of covered employers would be considered “covered employees” under the proposed regulations except: a) those covered by a collective bargaining agreement, b) new employees in their first two weeks, c) employees during workweeks when their respective wages exceed forty (40) times the applicable minimum hourly wage, and d) “regularly scheduled employees” who volunteer to cover a shift. Employees are only considered “regularly scheduled” if they have a previously-written good faith estimate of hours.
The New York DOL published the proposed regulations here, and has asked for public comment by January 5, 2018. Comments may be submitted to firstname.lastname@example.org. If approved, the new regulations would be expected to come into effect in early 2018.