Many hourly workers in New York are forced to remain “on call” and available at the sole discretion of the employer. Such scheduling practices wreak havoc with an employee's daily life and income, as they are often unable to work a second job or meet regular family obligations. In many cases, on-call employees are ordered to report into work only to be told they are not needed, thus depriving them of a day's pay.
Earlier this year, New York City enacted a comprehensive set of employment laws designed to restrict on-call scheduling practices, particularly in the fast food industry. On November 10, New York Gov. Andrew M. Cuomo announced new statewide regulations that will supersede the city rules. The governor's announcement came following a series of public hearings by the New York State Department of Labor, which will enforce the new regulations starting in January 2018.
Employers Will Owe Workers for Last-Minute Shift Changes
The main thrust of the new state rules is that employers must schedule employee work shifts at least 14 days in advance. If the employer alters a work schedule at the last minute, the employee is entitled to “an additional two hours of call-in pay” for the inconvenience. The employee is entitled to at least four hours of call-in pay under any of the following circumstances:
- The employee reports for work as scheduled but is told to go home;
- The employee's shift is canceled within 72 hours of its scheduled start;
- The employee is “on call,” i.e., must be available “to report to work for any shift”; or
- The employee is “required to be in contact” during the 72 hours before the start of his or her shift to confirm they are needed for work.
Call-in pay must be made at the employee's normal rate of pay–or overtime where applicable. Please note that call-in pay is not considered compensation for time worked, but rather a premium paid by the employer for making last-minute scheduling changes. Therefore, call-in pay hours are not counted towards the calculation of overtime or any benefits.
Employers also cannot “offset” call-in pay by requiring employees to use any accrued leave. However, the mandatory four hours of call-in pay for reporting to worm or a canceled shift “may be reduced to the lesser number of hours that the employee normally works for that shift,” provided the total hours worked or scheduled does not “change from week to week.”
Finally, these new rules do not apply to any workplace covered by a separate collective bargaining agreement that “expressly provides for call-in pay.” Nor do the majority of the call-in pay provisions apply to any worker making 40 times the applicable New York State minimum wage for his or her position. Employers also do not have to provide call-in pay for unscheduled shifts for employees during their first two weeks of employment.
Do You Need Help From a New York Wage and Hour Attorney?
These recent moves by state and city officials should greatly benefit workers who depend on maintaining a regular work schedule. If your employer is violating your legal rights under any federal, state, or local laws, you need to speak with a qualified New York employment law attorney to discuss your options. Call the Law Offices of Mahir S. Nisar at 800.496.3076 if you need legal assistance right away.