“Call-In Pay” for “On-Call” Work: New York’s Proposed Employee Scheduling Rules

The New York State Department of Labor has introduced its proposed rules, to address the practice of “on-call” scheduling (also called “just-in-time” or “call-in” scheduling), which the Department describes as “common practices that allow employers to schedule or cancel workers’ shifts just hours before or even after it starts.” Governor Andrew M. Cuomo states that the regulations are intended to “increase fairness for workers and allow employers to retain flexibility.” The full rulemaking package will be release on November 22, 2017, which will kick off the 45-day window for public comment.

Rather than prohibiting or restricting the practice of “on-call” scheduling, the proposed rules require that employers pay its employees a minimum of 4 hours of “call-in pay” in the following circumstances: (1) where an employee reports to work a scheduled shift but the employer does not need the employee to complete the shift; (2) where an employee’s shift is cancelled less than 72 hours before the scheduled start of the shift; (3) where an employee is required to be available to report to work for any shift; and (4) where an employee 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. Additionally, if an employee reports to work a shift that was not scheduled at least 14 days in advance, such an employee must be paid an additional two hours of “call-in pay” unless the employee is new, voluntarily agrees to cover for a co-worker, or voluntarily agrees to cover a new shift during the first two weeks that shift is worked. The rules make certain exceptions for what are known as “acts of God” (e.g., blizzards or hurricanes), whereby the employer would not need to pay the additional “call-in pay” if the shift was canceled with less than 72, but more than 24, hours’ notice because the employer was unable to operate for a reason outside of its control.

The proposed rules would not apply to employees covered by a collective bargaining agreement. Additionally, if an employee’s pay for a given week exceeds forty hours-worth of minimum wage pay, that employee would only need to be paid “call-in pay” if she actually reports to work a scheduled shift but is told not to stay for that shift.

Furthermore, the proposed rules do not currently cover employees in the farm, building services, and hospitality industries, but would generally apply to most other employees.   However, New York Labor Commissioner Roberta Reardon stated in public hearings that other industries may eventually be considered for similar regulations.

New York’s regulations fall on the heels of similar new laws in other states, as well as New York City’s new scheduling laws that will go into effect on November 26, 2017. New York City’s laws are more restrictive, leading at least one public commenter to query whether the laws will be preempted by the new state regulations. The current proposed version of the rules does not address the issue.