NYSDOL Withdraws Its Proposed Regulations Relating to Predictive Scheduling

In January 2018, we issued an advisory relating to the New York State Department of Labor (the “NYSDOL”) proposed regulations regarding predictive scheduling that would have revised 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, in late 2018, the NYSDOL issued revised proposed regulations to the Wage Order, which were subject to comment through early January 2019. (A copy of our advisory related to those proposed regulations can be found here.)

In light of the extensive feedback received during the comment period, the NYSDOL announced that it has decided to let the proposed regulations expire and indicated it would “re-evaluate [the proposed call-in pay regulations] in the future, likely in concert with the Legislature.” Specifically, the NYSDOL stated that the “comments on the revised rules . . . indicated that significant issues remained, and the revisions did not achieve the balance of certainty and flexibility for either workers or businesses.”

Although the NYSDOL will not be pursuing predictive scheduling in the immediate near future, covered employers in the fast-food and retail industries in New York City still must comply with the regulations regarding New York City’s Fair Workweek Law, which we discussed in two prior advisories that can be found here and here.   

We will continue to monitor any updates from the NYSDOL or the legislature on this topic and issue additional advisories as appropriate.