Solution for Proposed NY Employee Scheduling Regulations

As of today the proposed NY Employee Scheduling Regulations are still pending, but Governor Cuomo’s prospective bill certainly has employers’ attention. The new regulation would require employers to extend call-in pay to employees when failing to give appropriate lead time before a shift or canceling shifts last minute.

More specifically, the NY DOL proposed regulations state employees would be eligible for call in pay for the following situations:

1. Reporting to work. An employee who by request or permission of the employer reports for work on any shift shall be paid for at least four hours of call-in pay.
2. Unscheduled shift. An employee who by request or permission of the employer reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift shall be paid an additional two hours of call-in pay.
3. Cancelled shift. An employee whose shift is cancelled within 72 hours of the scheduled start of such shift shall be paid for at least four hours of call-in pay.
4. On-call. An employee who by request or permission of the employer is required to be available to report to work for any shift shall be paid for at least four hours of call-in pay.
5. Call for schedule. An employee who by request or permission of the employer is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.

According to Governor Cuomo, the purpose of the regulation is to protect low-wage earners from having to scramble for childcare, change appointments, or adjust family budgets due to lost worktime. While call-in pay for being sent home early is already the law, the new proposed regulations has expanded the requirements for call-in pay when shifts are cancelled or scheduled at the last minute.

Does the New Regulation Apply to All Scheduled Employees?

No, the proposed regulation would not apply to regularly scheduled employees whose weekly wage for a given work-week exceeds the minimum hourly wage multiplied by 40. So, if the minimum wage was $10/hour, only employees that were making less than $400 for that work-week would be beneficiaries of the new call-in regulation.

The regulation also would not apply to employees in their first 2 weeks of employment. Also, employees are ineligible for call-in pay if:

• they voluntarily take a new and additional shift in the first 2 weeks that a shift is worked
• they voluntarily take a shift that was scheduled 14 days in advance and was previously covered by another employee

In this case, “volunteers to cover” would mean that on the request of a regularly scheduled employee or of an employer, when that request is extended to all eligible employees, and there is no penalty or consequence to the employee for declining the shift, the employee is able to accept or decline an open shift.

What is the Impact on Employers?

Under the new proposed regulation, employers would be responsible for:

• Identifying the employees who would be beneficiaries of the new regulation (those employees making less than {40 x Minimum Hourly Rate} per week).
• Review current scheduling practices and identify where call-in pay may apply
• Ensure employee schedules are published no later than 14 days in advance of shifts
• Ensure employees have access to schedules no later than 14 days in advance of shifts
• Providing call-in pay in accordance with the new guidance

What types of employers will most likely be impacted?

Industries that are most impacted by the new regulation are those that have a population of their workforce whose schedules are dynamic and operationally driven, and those that have a large population of minimum wage workers.

Some of the obvious industries affected are fast-food and retail. Certain healthcare organizations, such as Home Based Community Service (HBCS) or companion-care programs also have a number of nurses working dynamic shifts, often times for multiple employers simultaneously. The hospitality and hotel industry, given its dynamic operational needs based on capacity and events, may find it challenging to predict its labor needs and avoid call-in pay situations.

What would a scheduling software look like should the proposed NY Employee Scheduling Regulations take effect?

To meet the demands of the new regulation, here are a few key features you’d want a scheduling software solution to deliver:

• Electronic notification to employees when schedules have been posted
• Electronic notification when schedules have been changed
• Mobile phone notifications for employees and administrators
• Ability to post open shifts for employees to fill voluntarily (helps avoid call-in pay)
• Ability to post new shifts to a published schedule
• Ability for employees to swap shifts from their mobile device
• Audit trail for substantiating timely posting of shift assignments
• Provide audit worthy and exportable reports for DOL auditors

The goal is to avoid unnecessary call-in pay, pay it when it’s required, and be able to show audit-worthy documentation that you’re abiding by the regulations. For a guided questionnaire to help 

Looking for a better Employee Scheduling Software? Check out our article 10 Questions to Consider When Reviewing Employee Scheduling Software.