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Labor Dept. proposal takes aim at workers' frequent schedule changes

Proposed regulations would require businesses to give workers

Proposed regulations would require businesses to give workers more notice of shift changes. Credit: Getty Images/Vetta / Steve Debenport

Scheduling for some employees could become a lot more predictable under proposed state regulations that would penalize employers who call workers in or cancel their shifts without adequate notice.

Proponents said the 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.

•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.

•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.”

But Wayne Schaefer of Schaefer Law Group in Smithtown, which represents employees, said the proposed regulations are sorely needed.

“Employees are not given the option to not show up,” he said. “They refuse at their own peril. Why should an employee have to bear the full brunt of that situation?”

Grimaldi, who represents employers, agreed the proposal makes sense.

“It’s a lot easier to go to a second job and say ‘Listen, I would like to work this day 14 days from now,’” he said. “I understand the intent. Most of my clients have complied with a law like this because it is grounded in common sense.”

The Long Island Association, the region’s largest trade group, would like to see some changes to the proposal. They include halving the required notice for a schedule change to seven days.

“It is important to balance the shared goal of protecting our workforce from unfair practices while also ensuring that responsible employers maintain the flexibility to respond to unforeseen events,” said Matthew Cohen, the group’s vice president of government affairs and communications.

The comment period for the proposal was initially set to end Jan. 6 but was extended to Jan. 22.

Said Desiree Gargano, an associate in the labor and employment practice of the law firm Certilman Balin Adler & Hyman in East Meadow, “They were probably receiving a lot of comments.”

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