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Proposed Scheduling and Call-in Pay Rules Could Cost New York Employers

New York has issued a set of proposed new rules governing scheduling and call-in pay that could create headaches for businesses that sometimes find they need to add someone to the schedule at the last minute, or send someone home early when things slow down. The proposed changes would impact the current Miscellaneous Industries and Occupations Wage Order, the rules that govern everything from minimum wage, meal periods, and overtime for almost every employer in the state. Right now the regulations are in a comment period until January 11, 2019. Comments can be submitted to the NY Department of Labor at hearings@labor.ny.gov.

What are the current rules for “call-in” pay?

There are times where sales or production may be slower than was originally anticipated when a work schedule was created, so an employer decides that circumstances don’t require them to have employees stay at work for a full shift. Under these rules there is flexibility for the employer to adapt their staffing to the needs of the business, but also provides compensation to employees who have showed up for work as expected, even if a full shift is no longer required.

Currently employers covered by the Miscellaneous Industries and Occupations Wage Order are required to pay an employee four hours at the basic minimum wage OR for the hours of a scheduled shift (whichever amount is lower) if they report to work as scheduled and are sent home early.  Call in pay is considered satisfied if the employee has earned at least 4x the minimum wage in the hours they did work before being sent home. 

Examples: An employee who makes $13/hr and is sent home after 2 hours, has earned $26.  In this case they would only need to be paid an additional $18.40.  An employee who makes $25/hr and sent home after 2 hours, has earned $50 which is MORE than four hours at minimum wage and is owed nothing additional. *

*Examples based on the minimum wage for Upstate New York effective December 31, 2018

What are the changes to call-in pay and scheduling rules?

The new rules would expand the situations where call-in pay is required to include the above situation (reporting to work), but would also include:

• An unscheduled shift: Employers would be required to pay an employee an additional two hours if they work a shift at their employers request with fewer than fourteen days’ notice.
• A cancelled shift: An employer would be required to pay an employee two hours of call-in pay if a scheduled shift is cancelled with less than fourteen days’ notice, and four hours of call-in pay if the scheduled shift is cancelled with less than seventy-two hours’ notice.
• On-call: Any employee who is required to be available to work must be paid four hours of call-in pay.
• Call for schedule: Any employee who is required to call for their schedule with less than seventy-two hours’ notice is eligible for four hours of call-in pay.

How is call-in pay calculated?

Call-in pay is calculated one of two different ways. The first is for actual attendance, which should be calculated at the employee’s regular or overtime rate (whichever is applicable) minus any allowances. The second is the basic minimum hourly rate. Any call-in pay at the basic minimum hourly rate should not be included when calculating overtime.

Are there exceptions?

• If the employee is covered under a collective bargaining agreement that covers call-in pay, then they are not subject to these new rules.
• Any employees whose weekly wages exceed 40 times the basic hourly minimum wage rate would still be eligible for call-in pay if they report for a shift and are sent home, but would not be eligible for call in pay in the other circumstances.
• Employees whose schedule is dependent on the weather and/or to protect the health and safety of others are also exempt from the new provisions, provided the employee receives weekly wages that exceeds minimum wage for all hours worked, excluding any allowances.
• If an employee volunteers to cover a newly scheduled shift. This means that an employee is not required to work the shift and the newly scheduled shift would increase net staffing at that location during the time of the shift.
• If an employer provides employees with the option to voluntarily reduce or increase their schedules as a result of weather or travel conditions. In other words, if an employer allows employees to go home early before an anticipated snow storm, they would not be eligible for call-in pay. Likewise if the employer decides to cancel a shift because conditions at the workplace don’t allow for normal operations or if a state of emergency has been declared at the federal, state, or local level.   

What should employers be doing now to prepare for the very real possibility of new rules?

Employers should look at their current scheduling practices. If possible, try and go back through previous years and months and figure out the cycles of the business. Are there times that are busier where you can put people on the schedule with more notice? Times when your business slows down and rather than scheduling three employees and sending one home, you can get away with scheduling just two employees? There will always be unexpected times in the life cycle of a business where the organization may find itself over or understaffed, but planning can help minimize the time when a business needs to pay their employees for hours that aren’t actually worked.