New York Revises Employee Scheduling Proposal

Author: Michael Cardman, XpertHR Legal Editor

December 10, 2018

The New York State Department of Labor (NYSDOL) has revised its proposal for expanding the state's show-up time / reporting time requirements, which the NYSDOL refers to as "call-in pay."

In November 2017, the NYSDOL first proposed new regulations that would, if finalized, require employers to pay employees between two and four hours of call-in pay if they:

  • Cancel shifts without a certain amount of notice;
  • Require employees to be "on call" and available to report to work;
  • Require employees to be in contact before a shift to find out whether to report to work for that shift; or
  • Schedule a shift less than 14 days before the start of the shift.

After reviewing more than 600 comments on the November 2017 proposal, the NYSDOL made a number of revisions. Among other things, the revised proposal:

  • Provides an exemption from the unscheduled-shift and cancelled-shift requirements for when an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours so that they may stay at home or change their arrival and/or departure times;
  • Adds an additional limited exemption for:
    • Employees whose duties are directly dependent on weather conditions;
    • Employees whose duties are necessary to protect the health or safety of the public or any person; and
    • Employees whose assignments are subject to work orders or cancellations of work orders.
  • Provides that when an employer provides a weekly schedule, the 14-day period may be measured from the last day of the schedule;
  • Expands the requirements for cancelled shifts to provide that employees must be paid two hours of call-in pay if a shift is cancelled within 14 days of the scheduled start of the shift;
  • Removes the requirement that the total hours an employee works, or is scheduled to work, for a shift do not change from week to week in order to reduce call-in pay for shorter work days; and
  • Creates a "safe harbor" by establishing a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if the employer has provided a written good-faith estimate of hours to all employees that meets certain requirements.

The revised rulemaking will appear in the December 12, 2018, issue of the New York State Register, at which time it will be subject to a 30-day comment period. Comments should be emailed to

The NYSDOL will review comments and make a final determination by the end of February, according to a spokesperson.