Shifting Gears: New York State Revises Proposed Call-in Pay Rules

Seyfarth Synopsis: The New York State Department of Labor recently published proposed regulations that, if adopted, will require many employers to provide “call-in pay” to employees for hours they do not work. Although similar in many ways to the call-in regulations initially proposed in 2017, the revised proposal contains some key distinctions.

Ensuring that employers provide employees with predictable work schedules has been part of the New York State Department of Labor’s (the “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. For more information on the November 2017 proposed call-in pay rules, see our prior alert here.

After publication in the State Register and an ensuing 45-day comment period, the Department seemed to go mum on the status of the call-in pay regulations until last month when, via its website, the Department announced it had “filed a revised proposed rulemaking to address what is commonly identified as ‘just-in-time,’ ‘call-in’ or ‘on-call’ scheduling.” Similar to the Department’s initial proposal, the newly proposed rules list wide-ranging scheduling circumstances under which a protected employee would be entitled to call-in pay.

The proposal’s expansive provision of call-in pay reaffirms the State’s commitment to heavy regulation of employers’ scheduling practices. Therefore, while the Department is not required to take any specific action on the revised proposal within any particular timeframe after the comment period, we expect the Department to issue final call-in regulations sometime in early 2019. Key provisions of the newly proposed rules (“Proposed Rules”) follow.

Coverage

The Proposed Rules apply to employees subject to the Minimum Wage Order for Miscellaneous Industries and Occupations, including employees of for profit and not-for-profit entities.

The Proposed Rules do not, however, apply to employees covered by a collective bargaining agreement that expressly provides for call-in pay.

The Proposed Rules also do not apply, other than for reporting to work (discussed in more detail below), to employees who earn a cash wage of at least the full minimum wage and whose duties are directly dependent on weather conditions, whose duties are necessary to protect the health or safety of the public or any person, or whose assignments are subject to work orders, or cancellations thereof.

Finally, the Proposed Rules do not apply, other than for reporting to work, in weeks where an employee earns more than 40 times the hourly minimum wage.

Situations Requiring Call-In Pay

Subject to the limited exceptions discussed above, the Proposed Rules mandate call-in pay in the following situations.

Reporting to Work: Employees who, by request or permission of their employer, report to work on any shift are entitled to at least four hours of call-in pay, or call-in pay for the number of hours in the employee’s regularly scheduled shift, if less than four hours.
Unscheduled Shifts: Employees are entitled to two hours of call-in pay when, by request or permission of the employer, the employee reports to work for a shift not scheduled at least 14 days in advance. The Proposed Rules afford some flexibility for employers that provide a weekly schedule — the 14-day period may be measured from the last day of these employers’ weekly schedule as opposed to from the day an employee is assigned the additional shift.
Canceled Shift: Employees are entitled to at least 2 hours of call-in pay if their shift is canceled within 14 days, or 4 hours of call-in pay if a shift is cancelled within 72 hours of the scheduled start of the shift. Like for reporting to work, under the Proposed Rules, “the four hours of call-in pay for . . . cancelled shifts . . . may be reduced to the lesser number of hours that the employee is scheduled to work and normally works, for that shift.”
On-call: Employees who are required to be available to report to work for any shift shall be paid at least four hours of call in pay.
Call for Schedule: Employees who are required to be in contact with the employer within 72 hours of the start of a shift to confirm whether to report to work shall be paid at least 4 hours of call-in pay.

Rate of Call-In Pay

The applicable rate of pay for each hour of call-in pay is set forth below.

Actual Attendance: Employees’ call-in pay rate for actual attendance time is their regular or overtime rate of pay, whichever applies, minus permissible allowances. There is no available guidance interpreting the phrase “actual attendance.” We understand this provision, however, to simply reiterate employers’ obligation to pay employees their regular or overtime rate of pay for all hours actually worked.
Minimum Rate: An employee’s call-in pay rate for “other hours” (i.e., other than those for actual attendance), is calculated at the basic minimum hourly rate, with no allowances. Because this is not payment for work, it would not be included in the employee’s regular rate of pay for calculating the overtime rate of pay.
Offsets: Call-in pay cannot be offset by requiring the use of leave or by payments exceeding those required by law.

Exceptions

The Proposed Rules’ provisions on unscheduled shifts (as discussed above) will not apply to (i) any new employee during the first two weeks of employment; or (ii) any employee who volunteers to cover a new shift or a previously scheduled shift. Definitions relevant to this exception are set forth below.

New shift: means the first two weeks of an additional shift that results in a net increase in staffing at a single workplace during the period of time covered by such shift;
Previously scheduled shift: means a shift that would not have been subject to unscheduled shift call-in pay if worked by the employee who was originally assigned to work that shift;
Volunteers: means that the that the employee may refuse to cover the new or previously scheduled shift.

The Proposed Rules include a rebuttable presumption that an employee “volunteered” if (i) the employer provides a written good faith estimate of hours, which may be amended at an employee’s request or upon two weeks’ notice by the employer; and (ii) the request to cover a new or previously scheduled shift is either (a) made by the employee whose shift would be covered; or (b) made by the employer in a written communication to a group of employees requesting a volunteer from among the group and providing a reasonable deadline for responses. In scenario (ii)(b), if no employee volunteers prior to the deadline, the Proposed Rules permit an employer to assign an employee to the shift without providing call-in pay.

Moreover, the Proposed Rules on unscheduled and canceled shifts do not apply when an employer, in response to weather or other travel advisories, offers employees the option to voluntarily reduce or increase their scheduled hours so that employees may stay home, arrive early, arrive late, depart late, or any combination thereof.

Finally, the canceled shift provisions would not apply when: (i) the employer cancels an employee’s shift due to the employee’s request for time off; or (ii) when operations at the workplace cannot begin or continue due to an act of God or other cause not within the employer’s control (e.g., a federal, state, or locally declared state of emergency).

Implications for Employers

Given this second round of extensive proposed call-in pay requirements, employers should prepare to revise their written policies in accordance with the revised proposed rules on call-in pay. We will continue to track implementation of the legislation, and advise of any updates.