A proposed change to New York State’s labor laws would put extra money into the pockets of some on-call workers, but it may come at a cost.

Governor Andrew Cuomo and the Department of Labor have proposed a new call-in pay rule for certain businesses that have on-call employees. Under the new regulation, business owners must schedule on-call employees’ shifts no less than 14 days in advance, and they must pay workers extra money if they are called in unexpectedly or if they fail to notify a call-in employee that his or her shift was cancelled at least 72 hours in advance. The only exception to the regulation is if a business owner cancels on-call employees’ shifts due to a natural disaster, such as a flood or a blizzard.

The proposed regulation would replace the current call-in pay law, which states:

An employee who by request of permission of the employer reports for work on any day 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.

The proposed regulation would cover employers in New York State, except for those in the hospitality, building service and agricultural industries. For example, a part-time cashier at a supermarket who is on call for additional hours would be covered, but a restaurant waiter or a hotel maintenance worker would not.

Here is the breakdown of what on-call employees would make under the proposed call-in pay regulation:

• Employees would receive 4 hours of pay if their employer doesn’t notify them at least 72 hours in advance that their shifts have been cancelled
• Employees would receive 2 hours of extra pay if they are called in to work an unscheduled shift
• Employees would receive 4 hours of extra pay if they are required to be available to report to work on a particular day
• Employees would receive 4 hours of extra pay if they are asked or permitted by their employer to be in contact within 72 hours of the start of their shifts to confirm that they are to report to work

An employer won’t have to pay an on-call employee extra money if the employee initiates a cancelled shift. However, an employer would have to pay extra if an on-call employee wants to come in ahead of his or her scheduled shift.

By requiring employers to schedule shifts at least two weeks in advance, the proposed call-in pay regulation gives on-call employees an opportunity to plan ahead for matters such as doctor’s appointments, babysitting services and, in some instances, working other jobs. However, it’s the requirement to pay on-call workers extra for cancelled or additional shifts that provides the more immediate benefit – additional income.

Some business owners have been openly critical of the proposed call-in pay regulation and are beginning to talk about replacing on-call employees with automation, whenever possible. On-call employees should monitor the situation closely and consider hiring an experienced labor and employment attorney if they suspect that their employer is considering reductions in the workforce. An unfair labor practice case could be made if employers eliminate on-call employees in order to save money and prevent scheduling issues. On-call employees should also take note of the provisions included in the proposed regulation and hold their employers responsible if they are not paid extra salary when their shifts are cancelled or they are called in at the last minute.

New York’s proposed call-in pay regulation will be a game changer for certain on-call employees, but they may have to fight for their new rights.

Graig F. Zappia is a Partner at Tully Rinckey PLLC’s Albany, NY office. Mr. Zappia focuses his practice on labor and employment law, where he represents employers and employees across New York State in public and private sector discrimination lawsuits, Fair Labor Standards Act and Family Medical Leave Act matters.