Employees may benefit from New York State’s revised proposed rules for “call-in” pay and scheduling. Employers, however, may face challenges complying with the new rules, if they are adopted.

The new rules would amend the way employers are required to pay employees for situations where an employee is required to report to work for less than a normal shift, unscheduled shifts, cancelled shifts, on-call shifts, and call-for shifts.*

The current version of the proposed regulations appeared in the December 12, 2018 State Register, and the public was provided 30 days to comment (until January 11, 2019). There is currently no date set for the state Department of Labor to issue final regulations.

The proposed rules address a variety of issues regarding employee scheduling, and the amount of notice with which employers are required to provide employees. The proposed rules, which include amended sections 142-2.3 and 142-3.3 of 12 of the New York Codes, Rules and Regulations, would require employers to provide “call-in pay” in the following circumstances:

• Reporting to work. Employees shall be paid for at least four hours or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.
• Unscheduled shifts. Employees who report to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift shall be paid an additional two hours of call-in pay.
• Cancelled shifts. Employees whose shifts are cancelled by the employer shall be paid for at least two hours of call-in pay, if the shift is cancelled within 14 days, or for at leastfour hours of call-in pay if the shift is cancelled within 72 hours, in advance of the scheduled shift.
• On-call. Employees required by the employer to be available to report to work for any shift shall be paid for at least four hours of call-in pay.\
• Call for schedule. Employees who are required by the employer to be in contact with them within 72 hours of start of the shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.

Initial draft of proposed rules

The Department of Labor first issued proposed call-in regulations after Governor Andrew Cuomo called for public hearings on employee scheduling rules in September 2017. Initial proposed rules were created, but were met with concern by some business owners and certain groups, including the state’s Business Council of New York State, which represents 2,300 businesses in the state.

“Our primary concern is related to the continued use of Wage Orders to promulgate regulations of major importance affecting large sections of the New York State economy,” the Business Council said in a letter to the Department of Labor in January 2018. “These major policy actions are repeatedly done without specific statutory directive and outside of the legislative process.”

Of specific concern to the Business Council was the use of the term “shift” versus “day” in the proposed rules, because it could cause confusion whether an employee, who may have completed a scheduled shift and is asked to stay to work another (scheduled or unscheduled) shift, would be entitled to the four hours of call-in pay, the Business Council contended.

Citing what the Business Council said was “perhaps the most concerning” was the requirement of the payment of four hours of call-in pay for each shift for which an employee is on call. “Again, the reliance on the term “shift” as opposed to “day” is concerning,” the Business Council noted. “Would an employee on-call for the weekend be entitled to six shifts (two days of three 8-hour shifts) of call-in pay?”

Besides the new proposed regulations, employers who use on-call employees should be wary of the federal Fair Labor Standards Act and New York Labor Law. Depending on a number of factors, including how restrictive the on-call period is to the employee’s time or whether they are required to do work while on call, an employer could be held responsible for paying the employee a minimum hourly rate for the time they are on call.

New proposed rules

The Department of Labor revised the proposed rules after holding four hearings around the state and soliciting comments from the public, but did not specifically address the Business Council’s concerns.

On-call employees should monitor the proposed regulations and hold their employers accountable if they are not paid extra when their shifts are cancelled or they are called in last-minute. Employers should be monitoring these regulations carefully, and when they are finally issued, make sure their policies and handbooks are adjusted to reflect the new rules.

* The new rules would not affect employees covered under the New York Hospitality Wage Order and the New York Minimum Wage Order for the Building Service Industry.

Nicholas A. Devyatkin, Esq. is a labor and employment attorney in Tully Rinckey PLLC’s Manhattan office.