Summary of Proposed Call-in Regulations Available

As previously communicated, the New York State Department of Labor (DOL) recently issued revised proposed regulations governing “just-in-time,” “call-in,” or “on-call” scheduling of workers. Our general counsel, Hinman Straub, has prepared a detailed summary of the revised proposed regulations, which were published in the Dec. 12, 2018 State Register and are open for comments until Jan. 11, 2019.

While long term care providers were not exempted entirely from the call-in regulations as LeadingAge NY requested, one of the changes to the proposal could address many of the problems we raised. Specifically, the revised regulation includes certain exceptions to the “call-in” pay requirements when the employers “are subject to outside forces like weather (e.g., snow removal), [operate] at the will of customers and customer needs (e.g., funeral homes, emergency transportation, health care), or [are impacted] due to customer cancellations or last minute orders.”

Under current DOL regulations, employers must pay employees for at least four hours of call-in pay per day if they report to work by request or permission of the employer. The proposed regulations would further expand on-call pay to apply when an employee:

1. Reports to work for any shift that hasn’t been scheduled at least 14 days in advance (an additional two hours of call-in pay is required);
2. Has his/her shift cancelled within 14 days in advance (the employee must be paid for at least two hours of call-in pay, and if cancelled within 72 hours of the start of the shift, at least four hours of call-in pay);
3. Is required to be on-call to report to work for a shift (he/she must be paid for at least four hours of call-in pay); and
4. Is required to contact the employer within 72 hours of the start of the shift to confirm whether to report to work (he/she must be paid for at least four hours of call-in pay.)

Unless the employee reports and works, these additional call-in hours would be paid at the minimum wage rate.

In addition to the proposed exemption above, the regulation would provide exceptions for: (1) employees covered by collective bargaining agreements that expressly provide for call-in pay; (2) workers who “volunteer to cover” another worker’s shift; (3) certain cancellation of shifts due to emergencies (e.g., weather, etc.); (4) employer responses to weather or other travel advisories allowing employees to reduce or increase their hours; (5) employees during work weeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage rate (except when the employee works the added time); and (6) new employees offered new shifts without a premium during the first two weeks of their employment.

We welcome member input on the proposal for inclusion in LeadingAge NY’s comments and will keep members posted on its status.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866