Just in Time for the Holidays

Anthony A. Mingione

New York State is considering new regulations that will restrict the ability of service industry employers to utilize “on-call” or “just in time” scheduling practices for shift workers. These scheduling practices are common in many industries and generally allow employers to schedule, cancel, or cut workers’ shifts with little or no advance notice.

Employees testifying before the State Department of Labor said that these practices often leave workers unable to manage child care schedules and personal engagements, and prevent them from taking second jobs. Business representatives argued they require flexibility and that employers need to have these scheduling practices available to adapt to unpredictable circumstances, such as employees not attending work, unexpected customer demands, or inclement weather.

The proposed regulations would require employers to provide fourteen days of advance notice for standard shift scheduling and provide two hours of extra pay for last-minute assignments. Employers would also see an expansion of existing “reporting pay” regulations that would mandate the payment of at least four hours of wages to workers whose shifts are cancelled at the last minute and to workers who are on standby to come into work if called.

Employers will, however, maintain control over shift scheduling. Businesses will also be permitted to offer new shifts without a premium during the first two weeks of a worker’s employment, and allowed to avoid penalties in instances where workers swap shifts or if shifts are cancelled due to weather at least 24 hours in advance.

The proposed regulations are subject to a 45-day comment period after publication in the November 22, 2017 State Register. Please contact us if you would like more information on how these new rules could affect your business, or if you would like assistance in preparing and submitting comments. Once the comment period ends and the State Department of Labor evaluates the comments, we expect it to issue final regulations that include at least most of what has been proposed.

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