March 2019 - NYDOL Call-In Pay Proposed Regulations Expired

Jackson Lewis legal alert, 2/28/2019

The New York State Department of Labor (NYSDOL) is no longer pursuing regulations on “call-in pay,” or predictive scheduling, that would affect most New York employers. The regulations would have required employers, among other things, to provide call-in pay (ranging from two to four hours at the minimum wage) if:

  • Employers do not provide non-exempt employees 14 days’ advance notice of their work shift;
  • Employers cancel employee shifts without at least 14 days’ advance notice;
  • Employers require employees to work “on-call”; or
  • Employers require non-exempt employees to report to work but then send them home.

After a round of revisions that included several exemptions to the regulations, the NYSDOL has decided to allow the proposed regulations to expire. This development is a relief for employers who would have lost flexibility in scheduling employees and responding to customers’ needs. The proposal also could have had the effect of restricting employers’ willingness to grant employees’ requests for modifications to their schedules or shifts, as doing so might also trigger penalties to employees asked to cover such shifts.The NYSDOL will leave employee scheduling to be determined by employees and employers, at least for now.

While the proposed regulations will no longer be an issue for employers statewide, covered New York City employers (certain fast food and retail employers) are still subject to the Fair Workweek Law. Further, the NYSDOL may work with the New York State Legislature to advance predictive scheduling legislation in the future.

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