New regulations are currently being considered by the New York State Department of Labor that impact employees and employers alike.
The proposed regulations will require, among other things, that an employee whose shift is cancelled within 72 hours of the scheduled start time be paid for at least four hours of “call-in pay” even though no hours are actually worked. In addition, under the proposed regulations, an employee who is requested to work and does work a shift that has not been scheduled at least 14 days in advance of that shift, shall be paid an additional two hours of “call-in pay” on top of the wages earned for hours actually worked. And, if an employee is required to be on “stand by” for 72 hours before a shift starts in case he/she is needed to work, then the employee must be paid at least four hours of “call-in pay” whether the employee ends up being called in to work or not.
There are exceptions and limitations built into the rules, such as when a collective bargaining agreement has already expressly provided for call-in pay, or when an employee volunteers to cover a fellow co-worker’s shift at the request of the co-worker or after an open request from the employer addressed to all employees.
Determining the correct wage for the “call-in pay” hours may be challenging. Employers have to determine whether those call-in pay hours will be at the employee’s regular wage, at the employee’s overtime rate, or at the State basic minimum hourly wage, and whether allowances may be taken. The general rule is that if the employee actually works the shift he/she was called in for, then the call-in hours will be paid at the employee’s regular hourly rate, unless the employee has worked more than 40 hours that week in which case it will then be paid at the employee’s overtime rate. Permitted allowances may be counted towards wages in this scenario. All other call-in pay is paid at the State minimum wage rate with no allowances, and these non-worked call-in hours are not taken into account in determining whether or not an employee has worked over 40 hours that week (i.e., the non-worked call-in hours are not factored in when determining if overtime wages are due in a given week).
Employers and employees who would like to comment on the proposed regulations before they are adopted by the Department of Labor can do so by January 5, 2018, by emailing the Department of Labor at: firstname.lastname@example.org.
If you have questions on how these regulations may affect you, contact an attorney.
Jennifer S. Echevarria is an Associate with the firm and practices Immigration and Employment Law including U-Visas and wage and hour violations. She is bilingual in Spanish and can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.