New York State Jumps on the Predictive Scheduling Bandwagon and Issues Proposed Scheduling Rules

Image Source: http://www.restaurant.org/News-Research/News/Predicting-the-future-of-predictive-scheduling

On the eve of the November 26,
2017 effective date of New York City’s own predictive scheduling regulations
that affect retail and fast food employers,1 the New York State Department of Labor has
issued proposed predictive scheduling regulations for certain industries. 
The proposed regulations would revise the Minimum Wage Order for the
Miscellaneous Industries and Occupations to limit employers’ ability to
schedule employees for on-call shifts and require employers to pay employees
for cancelled shifts and newly issued shifts. If the proposed regulations
become effective, New York State would become the second state in the country
to implement state-wide predictive scheduling rules.

While New York City’s regulations target
only retail and fast food employers, the proposed state-wide regulations would
affect any employer that is covered under the Minimum Wage Order for the
Miscellaneous Industries and Occupations. Covered employers include those in
the retail, financial services, health-care, and construction industries. 
The only employers not covered by these proposed regulations are hospitality
employers, non-profitmaking institutions, employers in the building service
industry and employers of farm workers.

Under the proposed regulations covered
employers must:

  • pay
        at least four hours of “call-in pay” to any employee who reports for work
        by request or permission of the employer;2
  • pay
        an additional two hours of call-in pay to an employee who reports to work
        for any shift that has not been scheduled at least 14-days in advance;3,
  • pay
        an additional four hours of call-in pay to an employee whose shift is
        canceled within 72 hours of the scheduled start of such shift;5
  • pay
        an additional four hours of call-in pay to an employee who is required to
        be available to report to work; and,
  • pay
        an additional four hours of call-in pay to 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.

The regulations define that call-in pay
shall be calculated by paying an employee at her regular or overtime rate
(minus any permitted allowances) for the time of the employee’s actual
attendance.  With respect to the portion of the call-in pay required for
the time the employee is not actually working, the employer is required to
compensate the employee at the basic minimum hourly rate (with no allowances
permitted).  The regulations also specifically provide that an employer
cannot require an employee to use any paid leave time to offset the required
call-in pay.

The proposed regulations specifically do
not apply to exempt, executive, administrative and professional employees, and
also do not apply to employees who are covered by a valid collective bargaining
agreement that expressly provides for call-in pay.

Call-in pay also does not apply to
employees whose weekly wages exceed 40 times the applicable basic hourly
minimum wage rate.  Although this exception is awkwardly worded, this
appears to mean that a covered employer is not required to pay call-in pay
premiums to any covered employee who worked more than 40 hours in a workweek
and who would be owed overtime pay for that week.

The proposed regulations also provide a
limited exception to the requirement to issue call-in pay to those employees
who report to work for any shift that has not been scheduled at least 14 days
in advance.  Specifically, the employer will not be required to issue
call-in pay to any regularly scheduled employee who volunteers to cover: (i) a
new and additional shift during the first two weeks that the shift is worked;
or (ii) a shift that had been scheduled at least fourteen days in advance to be
worked by another employee. A “regularly scheduled employee” means an employee
who is scheduled at least fourteen days in advance for shifts consistent with a
written good faith estimate of hours provided by the employer at the time of
hiring or at the time that the regulations go into effect, whichever is later.6 In addition, the
term “volunteers to cover” as used in the proposed regulations means the
acceptance of any request from another regularly scheduled employee or of an
open request from the employer that is extended to all eligible employees, with
no penalty or consequence for any employee who does not extend or accept such
requests.

Finally, the proposed regulations
provide that an employer will not be required to issue call-in pay premiums for
shift cancellations, when it cancels a shift at the employee’s request for time
off, or when operations at the workplace cannot begin or continue due to an act
of God or other cause not within the employer’s control, including, but not
limited to, a state of emergency declared by federal, state, or local
government.  However,  where operations can begin or continue but
staffing needs are reduced due to act of God or other cause not within the
employer’s control, the 72-hour shift cancellations period shall be reduced to
24-hours for regularly scheduled employees.

Open Questions

Presently, it is unknown whether these
regulations will preempt New York City’s predictive scheduling laws that apply
to retail establishments.

In addition, it is unclear when the New
York State Department of Labor will issue regulations that cover the
hospitality industry. It is, however, certain, that such regulations will be
issued.

The proposed regulations will be
published in the November 22, 2017 issue of the State Register and will be
subject to a comment period for 45 days from that publication date (January 8,
2018). To submit a comment, you can email hearing@labor.ny.gov.  It
is unclear if the final regulations will be identical to the proposed
regulations or if the New York State Department of Labor will clarify
ambiguities such as whether covered employers are required to provide new hires
with a good faith scheduling estimate, or whether they are required to publish
schedules 14 days in advance.

At Converge HR
Solutions, we offer a complete HR Outsourcing service. Included in this package is employee
compensation and regulatory compliance so that your company pays employees
properly, on time, and are always being compliant and up to date with the most
recent law changes when it comes to scheduling and compensation.  If you would like to learn more about what else is
included in our HR Outsourcing service, or are interested in any of the other
products and services Converge has to offer, visit our website at https://convergehrsolutions.com/, email us directly at info@convergehrsolutions.com or give us a call at
610-296-8550.

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