Just over a year has passed since the New York Department of Labor (DOL) released proposed regulations that would require employers to pay employees who are called in to work without appropriate notice or whose schedules are not set in advance, referring to this guarantee as “call in pay,” “on call scheduling,” or “just in time” pay.

The DOL has released a new version of proposed regulations, which are now available for public comment. The proposed regulations remain largely unchanged, and would still require employers to pay out certain wages to employees in the following circumstances: if an employee is required to work a shift without 14 days of notice; if an employee has their shift cancelled within 72 hours of the scheduled start of a shift; if an employee is scheduled to be “on-call”; and if an employee is required to be in contact with their employer within 72 hours of a shift to confirm whether they need to report to work.

The new proposed regulations would further continue to include many limited exceptions to some of the new requirements: when carve-outs for employees are in place that are covered by a valid collective bargaining agreement expressly providing for call-in pay; when an employee’s weekly wages exceed 40 times the applicable hourly minimum wage rate in a given week; when work is scheduled during the first two weeks an individual is employed; when an employee volunteers for a new shift or previously scheduled shift; when a shift is cancelled at the employee’s request for time off; and when operations at the workplace cannot begin or continue due to an “act of God” or other causes that aren’t within the employer’s control.

One important change is the carve-out for employees “whose duties are directly dependent on weather conditions or to employees whose duties are necessary to protect the health or safety of the public or any person, or to employees whose assignments are subject to work orders, or cancellations.” Another change is the exemption wherein an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours.

Notably, the new proposed regulations do not define certain terms, including an employee “whose duties are directly dependent on weather conditions,” “whose duties are necessary to protect the health or safety of the public or any person,” or “act of God.” Although the DOL does not explicitly define them, the proposed regulations provide that “a state of emergency declared by federal, state, or local government” is an example of a cause not within the employer’s control. These undefined phrases will likely be the subject of comments by the public.

The new proposed regulations will appear in the December 12, 2018 issue of the State Register and will be subject to a 30-day comment period following the date of publication.

For more information, please contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of our Employment and Labor Practice Group