The Department of Labor issued a second round of proposed regulations regarding call-in pay for New York employees. The comment period on these regulations has ended but final regulations have not yet been published.
Nevertheless, here’s what you should know about the proposed regulations:
- Minimum pay for a shift. If an employee reports to work due to the request or permission of her employer, the employee is entitled to the lesser of: (1) pay for the scheduled shift or (2) four hours pay at minimum wage.
- Notice of work schedule. If an employee reports for a shift that was scheduled less than 14 days in advance of the shift, she must be paid an additional two hours of call-in pay. This doesn’t apply to new employees during their first two weeks. It also doesn’t apply to employees who volunteer to cover a shift for which they weren’t previously scheduled. Finally, this doesn’t apply to shift changes caused by weather or travel advisories.
- Cancelled shifts. If an employee’s shift is cancelled within 72 hours of its start time, she must be paid the lesser of: (1) pay for the scheduled shift or (2) four hours of call-in pay. If her shift is cancelled within 14 days of its start, she must be paid the lesser of: (1) pay for the scheduled shift or (2) two hours of call-in pay. This doesn’t apply to shifts cancelled due to an employee’s request for time off, weather or travel advisories, or other circumstances outside of the employer’s control, including but not limited to a state of emergency declared by federal, State, or local governments.
- On-call employees. If an employee is required to be available to report to work for a particular shift, she must be paid at least four hours of call-in pay for that shift. Similarly, if an employee is required to call her employer within 72 hours of the start of a shift to confirm whether she must report to work, the employee must be paid four hours of call-in pay.
- Calculating call-in pay. Employers may pay their employees minimum wage for call-in pay. This doesn’t change employers’ obligation to pay employees their regular hourly rate or overtime rate (if applicable) for the hours the employee actually works. Hours of call-in pay also aren’t considered in determining an employee’s entitlement to overtime pay. Employers may not charge call-in pay to an employee’s accrued paid time off.
- Presumption of volunteering. Employers who provide a good-faith estimate of hours to all employees in writing will benefit from a presumption that an employee volunteered for a shift and isn’t entitled to call-in pay when: (1) the request to cover a shift is made by a co-worker whose shift would be covered or (2) the employer makes a written request with a reasonable deadline to a group of employees asking for a volunteer to cover a shift.
- Applicability. The proposed regulations don’t apply to employees who have a collective bargaining agreement that provides for call-in pay. For other employees, there may be other applicable exceptions so be sure to check with your legal counsel about whether the regulations – once final – apply to your workforce.
There are rather detailed exceptions to these proposed regulations. Stay tuned for a description of the exceptions to determine if your workforce is governed by them or not.
And, finally, remember, the regulations are proposed. They aren’t yet final, but we think it’s important to preview them so New York employers can begin thinking about compliance and its economic consequences.
We’ll be keeping an eye out for the final regulations so check back frequently. In the meantime, if you’re an employer with questions about compliance with New York or federal law, the attorneys at The Coppola Firm have the experience you need.
