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Department of Labor Proposes New Scheduling Rules

The State Department of Labor has proposed new scheduling rules for employers covered by the Miscellaneous Industries and Occupations Minimum Wage Order which will dramatically increase employer costs for last minute schedule changes and make it much harder to run a business. Employers covered by this Wage Order include general merchandise retailers (Walmart, Target, etc.), grocery stores, convenience stores and many other employers not covered by an industry specific Wage Order. This proposal does not need the approval of the State Legislature. Similar to the increase in wages for tipped workers and the fast food minimum wage increase, the Labor Department can adopt these on their own after considering public comments.

Here are the key provisions of the proposed regulations:

  • Establishes a 14-day advance notice standard for scheduling and provide 2 hours’ extra pay for last-minute assignments
  • Expands existing reporting pay of at least four hours to now include last-minute cancellations and assignments and on-call shifts requiring workers to be on stand-by to come into work
  • Provides limited flexibility for employers due to unforeseen circumstances such as weather or other disruptions
  • Employees swapping schedules amongst themselves on a completely voluntary basis will still be permitted under this proposal

These rules do not affect hospitality industry employers since you’re covered by the Hospitality Industry Minimum Wage Order but Governor Cuomo and the Department of Labor have made clear that this proposal will be extended to all other employers once finalized. While that would require a separate proposal and could provide an opportunity for industry specific accommodations, this proposal will be the foundation of the rules sought for all other industries so we need to pay attention and get involved in this fight now to protect your business in the future. Putting our heads in the sand and hoping it will go away will not be an effective strategy. We’re in the process of collaborating with our colleagues in the business community on a plan to take on this new threat and plan to aggressively defend your right to manage your business.