Employee Predictive Scheduling – Are you Ready?

The NYS Department of Labor recently released draft regulations aimed at curbing certain employer staffing practices referred to as “on-call” or “call-in” scheduling. These proposed rules would revise the call-in pay requirement of the Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142).


These new regulations would:

  • Continue the current call-in pay practice of paying a minimum of four hours pay for employees who report to work and for whom no work is available.
  • Require that employers pay workers who come to work for a shift not scheduled at least 14 days in advance an addition 2 hours of call-in pay
  • Require employers to pay workers who have a shift cancelled less than 72 hours prior to the start of that shift an additional 4 hours of call-in pay
  • Require employers who ask workers to call within 72 hours of the start of the shift to confirm whether to report to work or not to pay an additional 4 hours of call-in pay
  • Call-in pay will be calculated at the basic minimum wage for your area and employer size. It is not considered hours worked for the purposed of calculating overtime.


For example, in 2018 (when these rules are likely to be in place) if an Upstate employer asks an employee to work a shift which was not scheduled at least 14 days in advance – the employer must pay that worker an addition $20.80 (2 hours x the minimum wage – $10.40).


Exceptions include:

  • Employees during work weeks when their weekly wages exceed 40 times the applicable minimum wage (For upstate employees in 2018 that would be more than $416 per week; 40 x $10.40)
  • Employees covered by a collective bargaining agreement that expressly provides for call-in pay
  • New employees during their first two weeks of employment
  • Regularly scheduled employees who “volunteer to cover” for a shift scheduled to be worked by another employer
  • Certain provisions for shifts cancelled due to an act of God


The State has informed us that these new rules are intended to preempt NYC predictive scheduling laws effective earlier this year.


The proposed rules will appear in the November 22nd edition of the State Register and the public will have 45 days to comment on these new regulations. The Chamber recently attended, and submitted comment, at the DOL’s public hearing on this topic last month. The Chamber will also be submitting comments on behalf of our members over the next 45 days and would like to know how these rules would affect your business. Please let the Chamber know the effects of these rule changes to your business.

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