New York State Department of Labor Abandons (for Now) Proposed “Call-In” and Scheduling Regulations

In January 2019, we reported that the New York State Department of Labor (“DOL”) had, for the second time, issued proposed new “call-in” and scheduling regulations. Those regulations would have expanded when employers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”) had to pay overtime non-exempt employees call-in pay, as well as imposed new obligations to pay such employees for unscheduled shifts, cancelled shifts, on-call time and call-for-schedule shifts. In an unexpected about-face that will allow New York employers to maintain their existing scheduling flexibility, the DOL announced last week that it was allowing the proposed regulations to expire. Citing feedback it received during the comments period, the DOL stated that it had determined that “the best course of action is to let this process expire and reevaluate in the future, likely in concert with the Legislature, which would have a broader authority and better legal standing than [DOL] regulations alone to balance the various needs of workers, businesses and industries.” In other words, the proposed regulations created such opposition from all those potentially affected that the DOL decided they were not worth pursuing

While the DOL’s decision is certainly good news for employers, its statement that it will reevaluate the matter in the future, likely with the Legislature, leaves the door open that it will work to have the Legislature pass legislation to address the issue. And given that Democrats now control both houses of the Legislature and the governor’s office, and have made known their desire to pass employee-friendly legislation, employers should be prepared for some form of new scheduling restrictions to become law in the future. In the meantime, employers should ensure that they continue to comply with existing call-in pay and scheduling requirements. For example, the existing Wage Order requires that covered overtime non-exempt employees who report to work be paid at least four hours (or the number of hours in their regularly scheduled shift, whichever is less) at minimum wage, and that they receive one hour’s pay at minimum wage whenever their shifts span more than 10 hours or they work a “split shift.” Current law also requires that employers operating factories, mercantile establishments, hotels, restaurants and other businesses allow employees at least 24 consecutive hours of rest from work in any calendar week

Additional Assistance

For questions regarding the DOL’s decision on call-in and scheduling regulations, please contact any of the attorneys on our Labor & Employment Practice Team.