Wages and hours regulation in New York continues to evolve according to a new piece by Carrie Mason-Draffen of Newsday. Now the state is headed towards adding a new tier of penalties aimed at employers who call in employees (who are on call) and or cancel shifts of employees within certain time periods. As with nearly all costs of regulation and compliance for business, these penalties will be passed on to the senior care consumer – in many cases the originator of the “cancellation” or “call in”.
Scheduling for some employees could become a lot more predictable under proposed New York state regulations that would penalize employers who call workers in or cancel their shifts without adequate notice.
Proponents said the New York Labor Department rules would ensure a less disruptive work life for employees, especially those who work a second job or need child care. But some employers and their advocates criticized the proposed changes as too costly and restrictive.
The rules were drafted after the Labor Department held hearings around the state last year. The comment period ended Jan. 22. The department hasn’t yet issued the final rules.
The proposed changes have four key parts:
— If an employer fails to inform an employee of a schedule change at least 14 days in advance, the company would have to pay that worker an extra two hours at minimum wage, which is currently $11 on Long Island and $12 to $13 in New York City, depending on the size of the company.
Seems pretty onerous. Not simply the hard cost of wages but the total cost of compliance. Someone will have to systematically manage this new data. Now home care agencies will be expected to pay employees more for “intended services” over and above their actual delivered services. Current NYSDOL law already requires four hours of call-in pay at the minimum wage when an employee reports to work and is sent home early. Through no fault of their own agencies must cancel or call in employees due to responsiveness to client needs. Again these added costs will need to be passed on to consumers.
— If an employee’s shift is canceled less than 72 hours before it begins, the employee would have to be paid for four hours at minimum wage, or fewer hours if the worker’s shift was shorter.
— An employee required to be available to work for any shift must be paid four hours of on-call pay.
Most home care agencies already have a comp plan in place for this class of work. Now the state wants to codify what they see fit.
— An employee required to contact his or her employer less than 72 hours before the start of a shift to confirm whether to report also must be paid at least four hours at minimum wage.
The current call-in regulation requires employers to pay employees for at least four hours when they report to work but are sent home early. Now, the payment requirement has been extended to scheduling changes and on-call situations.
The rule would cover hourly employees in a variety of industries such as retail and health care, who constantly face changing schedules, experts said.
“I think the law was designed to help someone who works a more sporadic-type schedule,” said employment attorney Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola
But the proposal would exempt workers who are covered by different wage orders, such as those in the hospitality industry, which includes restaurants and hotels, as well as those in building services and agriculture. And the proposal also exempts full-time workers it labels as “highly compensated,” defined as those earning weekly wages that are at least 40 times the minimum hourly wage. And the rule wouldn’t cover workers whose contracts provide call-in pay.
Reaction to the proposed regulations has been mixed.
“The draft call-in pay regulations are an important effort to address widespread instability in hours of work and, therefore, income for low-wage workers,” said Helen Schaub, state director of policy and legislation at Local 1199 SEIU United Health Care Workers East in Manhattan.
But state Sen. Phil Boyle (R-Bay Shore), chairman of the Senate Committee on Commerce, Economic Development and Small Business, who conducted a hearing on the proposed changes in January, said he wants the proposal withdrawn.
“It could have a devastating effect on jobs in New York State,” he said. “I don’t know what the Labor Department was thinking.”
The Business Council of New York State Inc. also has blasted the proposal.
“While we can appreciate the public policy concerns that this rule is attempting to address,” the group said in a news release, “this rule would impose challenging administrative compliance burdens on many employers.”
Lawyer Dawn Davidson Drantch, corporate counsel at Alcott HR, a Farmingdale human-resources services company, also predicted a financial burden for businesses.
“It’s not insignificant when you are talking about two hours here, four hours there.”
Here is what the NYSDOL says on their website about the new call in regulations…
Specifically, four hours of call-in pay is required when a shift is cancelled less than 72 hours before the start of the shift (“cancelled shift”), when the employee is required to be in contact less than 72 hours before the shift to find out whether to report to work for that shift (“call for schedule”), and when the employee is required to be available to report to work (“on-call”). Two additional hours of call-in pay is required when as shift is scheduled less than 14 days before the start of the shift (“unscheduled shift”). See Proposed Rule at (a)(2)-(5) (“new requirements”).
More from the NYSDOL’s FAQ about the proposed new rules…
What are some examples of call-in pay under existing law and under the proposed rulemaking? The following examples reflect common employee scheduling practices and illustrate the types and amounts of call-in pay that would generally be required under the proposed rulemaking, absent any special exemptions or circumstances. See Proposed Rule at (a)(1)-(5) and (b)(1)-(4):
Reporting to work: If an employee is sent home early after working only 1 hour, then 4 hours of call-in pay would be required, with the first hour of actual attendance at the employee’s regular rate of pay and 3 additional hours at the minimum wage;
Unscheduled shift: If an employee works a shift that was not scheduled 14 days in advance, then the 2 hours of call-in pay would be required at the minimum wage, in addition to any wages earned during the shift;
Cancelled shift: If an employee’s shift is cancelled less than 72 hours before the shift then 4 hours of call-in pay would be required at the minimum wage;
On-call: If an employee is on call, but doesn’t end up working then 4 hours of call-in pay would be required at minimum wage; and
Call for schedule: If an employee is asked to call in to see if they have to work less than 72 hours before a shift then 4 hours of call-in pay would be required at minimum wage.
Questions:
What is the definition of frequent schedule changes?
What if an employee schedule does not change frequently but occasionally?
Do the proposed new regulations provide blanket coverage to all employees of the regulated industries, including those who may occasionally do on call work or have shifts cancelled?
Are you in the senior care business? If so let us know what you think by leaving a comment about the new proposed rules and how you plan to deal with them.
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