New “Predictive Scheduling” Regulations Could Have An Unpredictable Impact on Employers

Proposal would require New York employers to re-evaluate how they schedule, change, and cancel shifts

Predictive Scheduling

In 2017 New York City introduced regulations governing the scheduling of employees. The rest of the state, and other places around the country, aren’t far behind. Many employers will be familiar with the concept of “call-in pay,” which in New York requires employers to pay an employee for four hours at the minimum wage, not the employee's regular rate of pay, if they report to work and are sent home early. 

Labor groups and their allies in government have been pushing to expand call-in pay regulations to cover scenarios where employees are “on-call,” where schedules are changed or cancelled, and, when schedules are added. The thinking behind this push is to help employees be able to make plans and arrangements outside of work, for example, in making or adjusting plans for childcare. The problem for employers of course is that their businesses may not run on easily predictable schedules.

The New York City regulations include the following requirements:

  • Apply to retail establishments with 20 or more employees in the five boroughs;
  • Employers must provide a final schedule to employees 72 hours in advance of their shift;
  • Employers cannot require an employee to call in to see if they are scheduled to work more than 72 hours in advance;
  • An employer cannot add a shift to an employee’s schedule with less than 72 hours in advance without written consent from the employee;
  • An employer cannot cancel a shift with less than 72 hours’ notice except for one of the following reasons:
    • threats to employees or the employer’s premises;
    • public utility failure;
    • shutdown of public transportation;
    • fire, flood, or other natural disaster; or
    •  a government-declared state of emergency.
    • Employers must maintain copies of employees’ schedules for 3 years and provide copies of any employees’ previous schedules within 14 days of an employee’s request.

Failure to comply with these regulations may result in fines of $500 of each affected employee or employees’ damages.

New York State has not implemented a final rule on predictive scheduling, but a proposed rule has been issued and submitted for comment, with hearings held across the state during the last few months of 2017.

The rules as proposed include the following provisions:

  • Four hours of call-in pay must be paid to an employee who is required to be on call to report to work (e.g., if the employee is on-call but doesn’t end up working);
  • Four hours of call-in pay must be paid when a shift is cancelled less than 72 hours before the start of the shift;
  • Four hours of call-in pay must be paid when an employee is required to contact an employer less than 72 hours before the start of a shift to find out whether to report to work (on-call pay); and
  • Two hours of call-in pay is required when an employee is required to work a shift that is scheduled less than 14 days in advance.

The rules as proposed would not apply to:

  • Employees in the hospitality, building service or agriculture industries;
  • Employees whose weekly wages exceed 40 times the applicable basic hourly minimum wage rate;
  • Employees who are subject to a collective bargaining agreement that provides for call-in pay;
  • Exempt, executive, administrative and professional employees
  • New employees during their first two weeks of employment;
  • Regularly scheduled employees who “volunteer to cover” for a new and additional shift during the first two weeks that the shift is worked; or a shift that had been scheduled at least fourteen days in advance to be worked by another employee;
  • Employees whose operations at the workplace cannot operate due to an act of God or other cause not within the employer’s control.

Business groups have pushed back on the proposed regulations and there is a chance that they will be amended, but it is exceedingly likely that some form of predictive scheduling regulations will be implemented.

HR One is following this issue closely, and encourages employers to review their current scheduling practices covering scenarios when shifts may be added, cancelled, and changed on short notice. Watch the HR e-news for additional updates.