NYSDOL Proposes New Regulations Relating to an Employee’s Entitlement to Call-In Pay

In January 2018, we issued an advisory regarding proposed regulations from the New York State Department of Labor (the “NYSDOL”) revising the “call-in” pay requirements of the Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”). Those proposed regulations, however, were never adopted.

Instead, the NYSDOL has issued new revised proposed regulations to the Wage Order (a copy of which can be found here), which are currently subject to a public comment period ending on January 11, 2019. Comments must be e-mailed to the NYSDOL at hearing@labor.ny.gov.   

The revised proposed regulations provide that covered employees would be entitled to a certain amount of call-in pay where they: (i) report to work, but are then sent home; (ii) work an unscheduled shift with less than 14 days’ notice; (iii) have their shift cancelled with less than 14 days’ notice (or where the employee’s shift is canceled with less than 72 hours’ notice, an additional amount of call-in pay); (iv) are required to be available to report to work; or (v) are required to contact the employer within 72 hours of the start of the shift to confirm whether they must report to work.

What Is The Current Law Regarding Call-In Pay?

The Wage Order covers all New York employees, except for employees subject to other wage orders, such as the Hospitality Industry Wage Order (regulating restaurants and hotels), the Wage Order for Farm Workers, the Wage Order for the Building Service Industry, and other circumstances described below. The current regulations under the Wage Order require employers to pay an employee who reports for work on any day for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the New York State minimum hourly wage. 

What Are The Proposed Regulations Regarding Call-In Pay?

Subject to the exceptions described below, the proposed regulations would require employers to pay:

1. Four hours of call-in pay if: (a) the employee reports to work on any shift but is then sent home; (b) the employee’s shift is canceled less than 72 hours before the start of the shift; (c) the employee is required to be available to report to work; or (d) the employee is required to contact the employer less than 72 hours before a shift to confirm whether to report to work. Should the regularly scheduled shift be less than four hours, than the call-in pay owed may be reduced to reflect the number of hours in the employee’s regularly scheduled shift. 

2. Two hours of call-in pay if: (a) the employee reports to work for any shift that was not scheduled at least 14 days in advance; or (b) the employee’s shift is canceled less than 14 days before the start of the shift.

The proposed regulations would prohibit employers from offsetting call-in pay by required use of leave time or by payments in excess of those required under the regulations.

How Would Employers Be Required To Calculate Call-In Pay?

The proposed regulations would require employers to calculate call-in pay as follows:

• With respect to shifts for which the employee actually reported to work and performed services, employers must pay the employee’s regular rate or overtime rate of pay, whichever is applicable (minus any permissible allowances); and
• With respect to the other call-in pay scenarios, employers must pay the basic minimum hourly rate with no allowances (notably, these payments are not included in the employee’s regular rate of pay for purposes of calculating overtime since they are not for time worked).

Who Is Not Covered By The Proposed Regulations?

Significantly, the law would not apply to all employees in all circumstances. 

1. The regulations would not apply to employees covered by a collective bargaining agreement that expressly provides for call-in pay.

2. The regulations would not apply to employees during workweeks in which their weekly wages exceed 40 times the applicable basic minimum wage, except for an employee’s entitlement to four hours of call-in pay when reporting to work.

3. The regulations would not apply to employees whose duties are directly dependent on weather conditions, or to employees whose duties are necessary to protect the health or safety of the public or any person (or whose assignment are subject to work orders or cancellations thereof), except for an employee’s entitlement to four hours of call-in pay when reporting to work, provided the employees receive weekly compensation that exceeds the number of compensable hours worked times the basic minimum wage rate (without allowances). 

4. New employees during their first two weeks of employment would not be entitled to call-in pay if they report to work for hours that were not scheduled at least 14 days in advance.

5. Employees would not be entitled to call-in pay if they volunteer to cover a new shift or a previously scheduled shift. Under the regulations, a “new shift” would mean “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” would mean “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,” and “volunteer” would mean that “the employee may refuse to cover the new or previously scheduled shift.” 

Further, the proposed regulation has created a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if: (i) the employer provides a written good faith estimate of hours to all employees upon hiring; and (ii) if the request to cover a new or previously scheduled shift is either (y) made by the employee whose shift would be covered or (z) made by the employer in a written communication to a group of employees requesting a volunteer from among the group and identifying a reasonable deadline for responses. If no employee volunteers before the deadline, the employer may assign an employee to cover the shift without the additional call-in pay for unscheduled shifts. 

6. Employees would not be entitled to call-in pay for unscheduled or cancelled shifts if they, at the employer’s offering due to weather or other travel advisories, voluntarily reduce or increase their scheduled hours so that they may stay home, arrive early, arrive late, depart early, depart late, or any combination thereof.

7. Employees would not be entitled to call-in pay if the employer cancels a shift: (i) at 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 reason outside the employer’s control.

What Can Employers Do to Prepare?

The comment period for these proposed regulations expires on January 11, 2019. Accordingly, employers should take proactive steps so they are poised to comply with these regulations if/when they take effect, including: (i) training managers and payroll employees on the proposed regulations and their exceptions; (ii) working with their payroll providers to implement automatic procedures and guidelines to ensure that employees are receiving call-in pay when applicable; (iii) providing employees with adequate notice of shift cancellations and on-call scheduling; (iv) providing employees with good faith estimations of their schedules on at least 14 days’ notice; (v) preparing for and budgeting for any financial impact that may result from a need to continue to utilize on-call or call-in scheduling; (vi) tracking coverage needs to ensure that they are not  required to change shifts on short notice or alter good faith estimates to their employees; and (vii) reexamining scheduling practices to ensure compliance.

We will continue to monitor the proposed regulations and issue additional advisories as appropriate.