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Act Now Advisory – New York State Department of Labor Withdraws Proposed “Call-In Pay” Regulations

The New York State Department of Labor (“NYSDOL”) recently announced that it would no longer pursue employee scheduling regulations concerning “call-in” (or “on-call”) pay and other so-called predictive scheduling matters. As we previously reported, the proposed regulations, if adopted, would have required most employers in New York State to provide call-in pay under various circumstances, even though the employee had not actually worked or, in some situations, had not even reported to work.

Proposed Regulations

The NYSDOL’s proposed regulations had been in the works for several years. As recently as December 2018, the NYSDOL published revised proposed regulations for which they sought the public’s comments. Among other measures, the revised proposed rules would have required covered employers to provide “call-in pay” ranging from two to four hours at the minimum wage rate if the employer (i) failed to provide employees with 14 days’ notice of either their scheduled work shift or the cancellation of their scheduled work shift, (ii) required an employee to work “on-call” or to call in up to 72 hours ahead of their potential next shift, or (iii) decided to send a non-exempt employee home after the employee was instructed to report to work.

Withdrawal of the Proposed Regulations

In its statement announcing the withdrawal of the proposed regulations, the NYSDOL  acknowledged that its decision to step away from the rulemaking was “[b]ased on extensive feedback in the subsequent comment period.” The NYSDOL said that it was “clear” from the feedback that “the Department's initial intent to support workers while being fair to businesses was viewed as a one-size-fits-all approach that was not appropriate for every industry.”

Although the NYSDOL has withdrawn the proposed regulations, it also expressly left open the possibility of re-evaluating predictive scheduling laws in the future, likely in conjunction with the New York State Legislature. Indeed, now that the Legislature and the governorship are in the Democrats’ control, the introduction and potential enactment of such legislation are a distinct prospect.

Complying with Existing State and City Scheduling Obligations

Although the NYSDOL decided to scrap the proposed regulations, employers are still subject to the Hospitality Industry Wage Order, as well as the call-in pay requirements of the Miscellaneous Wage Order. Additionally, covered employers (certain retailers and fast food employers) in New York City are also subject to the Fair Workweek Laws.

What New York State Employers Should Do Now

  • Ensure compliance with the New York State Miscellaneous Wage Order, and where applicable, the Hospitality Industry Wage Order and New York City’s Fair Workweek Laws.

  • Consider voicing opinions and concerns the next time a governmental agency proposes rules or regulations that are potentially adverse to business interests or objectives. By the NYSDOL’s own admission, the public’s response to the proposed call-in pay regulations was key to its decision to withdraw them.

©2019 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Susan Gross Sholinsky, Labor Employment Attorney, Epstein Becker Green Law Firm
Member of the Firm

SUSAN GROSS SHOLINSKY is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims. In 2013, Ms. Sholinsky was named to theNew York Metro Rising Stars list in the area of Employment & Labor.

212-351-4789
Nancy Gunzenhauser, Labor Employment Attorney, Epstein Becker Law Firm
Associate

NANCY L. GUNZENHAUSER is an Associate in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Ms. Gunzenhauser:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace
  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post-employment restrictions
  • Prepares employment, consulting, and separation agreements
  • Audits employers’ employment policies, procedures, and handbooks to ensure compliance with applicable laws and best practices
  • Conducts workplace training seminars for employees, managers, and human resources personnel
  • Assists in defending clients in labor and employment-related litigation in a broad array of matters, such as discrimination, harassment, retaliation, breach of contract, and wage and hour disputes
212-351-3758
Jillian de Chavez-Lau Labor Employment Attorney
Associate

JILLIAN DE CHAVEZ-LAU is an Associate in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices, in the New York office of Epstein Becker Green.

Ms. de Chavez-Lau:

  • Assists in the representation of clients in labor and employment-related litigation involving breach-of-contract disputes and other matters
  • Regularly appears in federal and state courts and before administrative agencies
  • Advises on complex commercial litigation issues, including securities law and arbitrability.

Before...

212-351-4735
Marc-Joseph Gansah, Epstein Becker, Employee Handbook Preparation Lawyer, Workplace Discrimination Attorney
Associate

MARC-JOSEPH GANSAH  is an Associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Mr. Gansah:

  • Advises clients on designing, implementing, maintaining, administering, and terminating employee benefit plans

  • Counsels clients on executive compensation issues, including incentive compensation arrangements, and stock option plans with a concentration on cross-border executive compensation

  • Assists in representing employers in in arbitration and mediation before FINRA and JAMS...

212-351-4618