July 22, 2019

July 22, 2019

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New York Department of Labor Abandons Proposed Predictive Scheduling Rule

In November 2017, the New York State Department of Labor (NYSDOL) issued a proposed predictive scheduling rule that would have imposed various call-in pay requirements when shifts are scheduled or cancelled on short notice or when employees are on call. On December 12, 2018, the NYSDOL issued a revised proposed rule containing numerous revisions based on feedback from the business community. Now, the NYSDOL has announced that it is abandoning the proposed rule altogether.

On March 1, 2019, the NYSDOL announced that it will allow the rulemaking process to expire, but it held open the possibility that it would revisit predictive scheduling “in the future.”

In the announcement, the NYSDOL stated:

Following a series of public hearings in late 2017, the Department of Labor issued proposed regulations to address what is commonly identified as “just-in-time,” “call-in” or “on-call” scheduling.

Based on extensive feedback in the subsequent comment period, it was clear 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. Comments on the revised rules, issued in late 2018, indicated that significant issues remained, and the revisions did not achieve the balance of certainty and flexibility for either workers or businesses.

At this time, due to the constraints of the regulatory process, the best course of action is to let this process expire and re-evaluate in the future, likely in concert with the Legislature, which would have a broader authority and better legal standing than Department of Labor regulations alone to balance the various needs of workers, businesses and industries.

We will continue to monitor this development, including any future regulations or rulemaking by the New York State Legislature and/or the NYSDOL.

As a reminder, retail and fast food employers in New York City are subject to the city’s own predictive scheduling rules, known as the Fair Workweek Law. The NYSDOL’s decision to abandon its proposed predictive scheduling rule does not affect Fair Workweek Law compliance.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.


About this Author

Robert M. Tucker, Ogletree, Employment lawyer
Of Counsel

Robert M. Tucker devotes his practice to the representation of management in all aspects of labor relations, employment law and related litigation. He regularly represents management in state and federal court and before administrative agencies including the National Labor Relations Board, the Equal Employment Opportunity Commission, the New York State Division on Human Rights, the New York City Commission on Human Rights, the United States Department of Labor, the New York State Department of Labor and the New Jersey Department of Labor and Workforce Development.

In addition to...

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Daniel Bernstein Labor and Employment Attorney

Daniel Bernstein is a management-side labor and employment attorney, representing and counseling clients on a wide range of matters involving:

  • Federal and state wage and hour matters, including collective and class action defense

  • Title VII, Americans with Disabilities Act, Family and Medical Leave Act, Age Discrimination in Employment Act, and state and city Human Rights Law compliance and litigation

  • National Labor Relations Act

  • Contract drafting and review

  • Employee handbook drafting and review

  • Federal and state Fair Credit Reporting Acts

  • All aspects of workforce management, including hiring, leave, discipline, termination, disability accommodation, anti-discrimination training, and wage and hour compliance

Daniel was selected as a Super Lawyers Rising Star in 2017 and 2018 in the area of Employment Litigation.

Deeply involved in his community, Daniel has been a member of the Catskill Animal Sanctuary since 2015, and has served as a Board Member of the Daughters of Sarah Nursing Center, Jewish Federation of Northeastern New York, and Jewish Family Services of Northeastern New York.  Daniel was also a volunteer teacher for the Mifgash Community High School Program.

In 2017, the Jewish Federation of New York presented Daniel with the Samuel E. Aronowitz Young Leadership Award.