Hunton Retail Law Resource

On November 10, 2017, the New York Department of Labor released a set of proposed regulations affecting the Minimum Wage Order for Miscellaneous Industries and Occupations, which applies to most employers, except hotels and restaurants. The regulations propose the following call-in pay requirements for employers:

• Reporting to work. An employee who, by request or permission of the employer, reports for work on any shift must be paid for at least four hours of call-in pay.
• Unscheduled shift. An employee who, by request or permission of the employer, reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift must be paid an additional two hours of call-in pay.
• Cancelled shift. An employee whose shift is cancelled within 72 hours of the scheduled start of such shift must be paid for at least four hours of call-in pay.
• On-call. An employee who, by request or permission of the employer, is required to be available to report to work for any shift must be paid for at least four hours of call-in pay.
• Call for schedule. An employee who, by request or permission of the employer, is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work must be paid for at least four hours of call-in pay.

Call-in pay for employees’ “actual attendance” should be calculated at the employee’s regular rate of pay or at the overtime rate, whichever is applicable. All other hours of call-in pay should be calculated at the minimum hourly rate and should not be considered payment for time worked for the purposes of calculating overtime pay.

The proposed regulations provide for four exemptions.

• The proposed regulations do not apply to employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.
• During work weeks when an employee’s weekly wages exceed 40 times the applicable basic hourly minimum wage rate in a work week, employers are exempt from complying with most of the proposed regulations. However, employers will still be required to pay employees for at least four hours of call-in pay when the employee reports for work by request or permission of the employer.
• During a new employee’s first two weeks of employment, an employer will not be required to pay employees for two additional hours of call-in pay when the employee reports for a shift that was not scheduled two weeks in advance. An employee who volunteers to cover a new and additional shift during the first two weeks that the shift is worked, or who volunteers to cover a shift that had been scheduled at least two weeks in advance to be worked by another employee, is also exempt from the unscheduled shift provision.
• When an employer cancels an employee’s shift within 72 hours of the scheduled start of the 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), an employer will not be required to pay the employee two additional hours of call-in pay. Where operations can begin or continue but staffing needs are reduced due to an act of God or other cause not within the employer’s control, the 72-hour period should be reduced to 24 hours for regularly scheduled employees.

The proposed regulations will appear 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. To submit a comment on this proposed regulation, email hearing@labor.ny.gov.