New York State’s “Call-In” and Scheduling Pay Requirements Likely to ...

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LABOR & EMPLOYMENT

JANUARY 2019

New York State¡¯s ¡°Call-In¡± and Scheduling Pay

Requirements Likely to Change in 2019

Background

In an attempt to restrict employers¡¯ use of flexible

scheduling practices, the New York State Department of

Labor (DOL) recently issued, for the second time, proposed

regulations that would expand when covered employers

must pay non-exempt employees call-in pay and impose

new obligations on covered employers to pay non-exempt

employees for unscheduled shifts, cancelled shifts, on-call

time and call-for-schedule shifts. The DOL issued the first

proposed regulations in November 2018, but decided not

to adopt them as initially issued after conducting several

public hearings and considering comments from the public.

After apparently taking into account the responses it

received, the DOL issued revised proposed regulations in

December 2018. The proposed revised regulations are open

to public comment until January 11, 2019, after which it is

expected that the DOL will formally adopt them in the first

quarter of 2019. If adopted, the proposed regulations will

not only significantly reduce the ability of employers to use

flexible scheduling, but will also greatly increase the

associated costs and administrative burden.

Existing Regulations

Currently, non-exempt employees of covered employers

who report to work on any day must be paid ¡°call-in¡± pay

equal to the lesser of four hours of pay, or the hours of pay

in the employee¡¯s regularly scheduled shift, at the State

minimum wage rate. Thus, if an employee is sent home for

lack of work after reporting to work, the employee is

entitled to a minimum amount of ¡°call-in¡± pay for the day.

The current regulations cover virtually all private employees,

except those employed in the building services and

hospitality industries, and farm workers. As interpreted by

the DOL in a 2006 opinion letter, which remains valid, the

current regulations do not require any payment of call-in

pay if an employee¡¯s total wages for the workweek exceed

the minimum wage rate and the overtime rate (based on

one and one-half times the minimum wage rate) for the

number of hours worked, plus the minimum wage rate for

any call-in pay otherwise owed. Thus, the current

regulations allow any call-in pay owed to be offset against

an employee¡¯s other wages.

Changes Caused by the New Proposed Regulations

If adopted, the proposed new regulations will bring about

the following changes to call-in pay and scheduling

practices:

?? Reporting to Work: An employee who reports to work

for any shift (rather than on any day as currently

required), will have to be paid minimum wage pay for at

least four hours or, if the regularly scheduled shift is less

than four hours, the employee will have to be paid

minimum wage only for the hours in the regularly

scheduled shift.

?? Unscheduled Shifts: An employee who reports to work

for a shift not scheduled at least 14 days in advance of

the shift will have to be paid an additional two hours of

call-in pay at the minimum wage. (Where a weekly

schedule is provided, the 14-day period may be

measured from the last day of the schedule.)

?? Cancelled Shifts: An employee whose shift is cancelled

within 14 days before the start of the shift will have to

be paid two hours of call-in pay at minimum wage. An

employee whose shift is cancelled within 72 hours of the

start of the shift will have to be paid at least four hours

Prior results do not guarantee a future or similar outcome. The foregoing is for informational and advertising purposes only. The information provided

is not legal advice for any specific matter and does not create an attorney-client relationship. The recipient of this publication cannot rely on its

contents. If legal advice is required for any specific matter, please consult with qualified legal counsel. We would be pleased to assist you.

?2019 Phillips Lytle llp

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JANUARY 2019

of call-in pay at minimum wage or, if the regularly

scheduled shift is less than four hours, the employee will

have to be paid minimum wage only for the hours in

the regularly scheduled shift.

?? On-Call: An employee who is required to be available to

report to work (¡°on-call¡±) will have to be paid for at least

four hours of call-in pay at minimum wage.

?? Call for Schedule: An employee who is required to be

in contact with the employer within 72 hours of the

start of the shift to confirm whether to report to work

will have to be paid at least four hours of call-in pay at

minimum wage.

An employee must be paid his or her regular or overtime

rate of pay, whichever is applicable, for time of ¡°actual

attendance.¡± Payments for other hours of call-in pay are

calculated at the basic minimum hourly rate with no

allowances, and such payments are not hours worked for

purposes of determining overtime pay. The proposed

regulations also prohibit offsetting call-in pay with leave

time or payments to employees in excess of those required

by the regulations.

What Exceptions Apply?

(1) Wages 40 Times Minimum Wage: In any week in

which an employee¡¯s wages exceed 40 times the

applicable minimum wage rate, the employee would

be exempt from all of the on-call pay requirements,

except the call-in pay requirement for reporting to

work.

(2) Collective Bargaining Agreement: Employees

covered by a valid collective bargaining agreement that

expressly provides for call-in pay would not be entitled

to call-in pay under the regulations.

(3) Weather-Dependent Jobs/Health or Safety/Work

Orders: Employees whose duties are directly

dependent on weather conditions, or are necessary to

protect the health or safety of the public or any

person, and employees whose assignments are subject

to work orders or cancellation thereof, would be

exempt from call-in pay, so long as their weekly

compensation exceeds the number of compensable

hours worked times the applicable minimum wage,

with no allowances. However, this exception would

not apply to call-in pay for reporting to work.

(4) New Employees: The call-in pay requirement for an

unscheduled shift would not apply to any new

employee during the first two weeks of employment.

(5) Volunteers: The call-in pay requirement for an

unscheduled shift would not apply to any employee

who volunteers to cover a ¡°new shift¡± or a ¡°previously

scheduled shift.¡± The proposed regulations define a

¡°new shift¡± as ¡°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.¡± A ¡°previously scheduled shift¡± is defined as a

¡°shift that would not have been subject to

unscheduled call-in pay if worked by the employee

who was originally assigned to work that shift.¡± An

employee would be considered a ¡°volunteer¡± only if he

or she could refuse to cover the new or previously

scheduled shift. The proposed regulations include a

¡°safe harbor¡± provision that would create a rebuttable

presumption that an employee has volunteered if the

employer has provided a written good faith estimate of

hours to all employees, and the request to cover the

shift is made by the employee whose shift would be

covered, or 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 were

to volunteer prior to the deadline, the employer would

be allowed to assign an employee to cover the shift

without paying call-in pay required for unscheduled

shifts.

Prior results do not guarantee a future or similar outcome. The foregoing is for informational and advertising purposes only. The information provided

is not legal advice for any specific matter and does not create an attorney-client relationship. The recipient of this publication cannot rely on its

contents. If legal advice is required for any specific matter, please consult with qualified legal counsel. We would be pleased to assist you.

?2019 Phillips Lytle llp

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(6) Employers¡¯ Response to Weather or Travel

Advisories: Call-in pay for unscheduled and cancelled

shifts would not be required when an employer offers

employees the option to reduce or increase their

scheduled hours by voluntarily staying at home,

arriving early, arriving late, departing early, departing

late or any combination thereof, due to weather or

other travel advisories.

(7) Employees¡¯ Request for Time Off: Employers would

not be required to provide call-in pay when they

cancel a shift in response to an employee¡¯s request for

time off.

(8) Emergencies and Acts of God: Call-in pay for a

cancelled shift would not have to be paid when an

employer cannot operate due to an act of God or

other cause not within the employer¡¯s control,

including, but not limited to, a declared state of

emergency.

What Should Employers Do Now?

New York employers should monitor the status of the

proposed regulations and review their on-call and

scheduling practices to determine how they might be

affected by them, as well as start to plan now for how to

comply so that they are ready to do so when they are

adopted. Employers who need more guidance should

consult with their employment and labor counsel.

Interested employers can also still submit comments to

the DOL about the proposed regulations by email to

hearing@labor..

Additional Assistance

For questions regarding New York State¡¯s call-in and scheduling

pay requirements, please contact any of the attorneys on our

Labor & Employment Practice Team.

Prior results do not guarantee a future or similar outcome. The foregoing is for informational and advertising purposes only. The information provided

is not legal advice for any specific matter and does not create an attorney-client relationship. The recipient of this publication cannot rely on its

contents. If legal advice is required for any specific matter, please consult with qualified legal counsel. We would be pleased to assist you.

?2019 Phillips Lytle llp

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LABOR & EMPLOYMENT

JANUARY 2019

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Prior results do not guarantee a future or similar outcome. The foregoing is for informational and advertising purposes only. The information provided

is not legal advice for any specific matter and does not create an attorney-client relationship. The recipient of this publication cannot rely on its

contents. If legal advice is required for any specific matter, please consult with qualified legal counsel. We would be pleased to assist you.

?2019 Phillips Lytle llp

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