Many employers in the retail and service industries frequently need to call in employees at the last minute based upon an unexpected surge of consumers visiting the business. However, it is also common practice for employers in these industries to shorten “call-in” shifts just hours before or after an employee starts — and, in many cases, to cancel them. The New York State Department of Labor has proposed new regulations that will require employers to pay employees who are called in or whose schedules are not set in advance, referring to this guarantee as “call in pay,” “on call scheduling,” or “just in time” pay.

Employee compensation has been a focus in New York in recent years, and the state continues to enact protections for workers above those required by federal law. For example, starting December 31, 2017, minimum wage is scheduled to increase at varying levels across the state each year through 2021. As we reported last year, starting December 31, 2016, New York State raised the salary threshold at which those who work in administrative or executive roles will be exempt from state wage and hour provisions, with exemption levels scheduled to increase each year.

In September 2017 Governor Andrew M. Cuomo directed the New York State Labor Commissioner to hold hearings on the issue of employee work schedules — and in particular, employees’ uncertainty over “call in,” last-minute scheduling and pay. As a result of the hearings, the Department of Labor developed proposed regulations.

In part, the proposed regulations establish a 14-day advance notice standard for scheduling and provide two hours’ extra pay for last-minute assignments. The regulations also expand existing reporting pay of at least four hours to now include last-minute cancellations, assignments, and on-call shifts requiring workers to be on stand-by to come into work. All employees would be covered under these regulations, with the exception of employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.

The proposed regulations are subject to a 45-day comment period after publication in the November 22 State Register and are expected to take effect sometime in January 2018.

For more information on the impact of this new law, please contact:

• Kristin Klein Wheaton
• Christopher P. Maugans
• Or another member of Goldberg Segalla’s Employment and Labor Practice Group

View the proposed regulations:

• Employee Scheduling (Call-in Pay) — New York State Department of Labor