Plan to reform on-call scheduling rules abandoned

Proposal would have let employers change shifts at last minute

State regulators are hitting pause on an 18-month effort to overhaul New York’s on-call scheduling rules after potential changes were panned by the business and labor community.

A review of the practice, which gives some retail and service employers the flexibility to schedule a worker’s shift at the last minute based on the needs of the business, was initiated by the state Department of Labor in September of 2017 at the direction of Gov. Andrew Cuomo.

The department conducted hearings across the state and took multiple stabs at crafting regulations, with a final proposal in December introduced to address concerns raised by business owners about earlier efforts.

“Based on extensive feedback in the subsequent comment period, it was clear the department’s initial intent to support workers while being fair to businesses was viewed as a one-size-fits-all approach that was not appropriate for every industry,” said Jill Aurora, Labor Department director of communications. “Revised rules, issued in late 2018, were praised by opponents and criticized by supporters.”

The most recent regulations would have required businesses, with few exceptions, to schedule workers’ shifts at least 14 days in advance, and pay workers for an additional two hours of work if they were called in with less notice. Additionally, workers would receive two hours of callin pay if their shift was canceled within the two-week window, and four hours of pay if it happened within three days of the scheduled shift.

If an employee is required to be available to work a shift, the regulations guaranteed them at least four hours of pay.

Worker advocates say the extra pay is needed to protect workers from last-minute schedule changes that can limit their pay, as well as their ability to schedule child care and other activities. Businesses, particu-

larly those affected by the weather, maintained that the requirements and mandatory wages would hurt their bottom lines.

Assemblyman John Mcdonald, a Cohoes Democrat who owns an independent pharmacy, said in a social media post that the proposal was

well intended, but would have negatively affected businesses and resulted in more restrictive schedules for employees.

“In my 35 years in business, employees like a relaxed work schedule that allows them time to take off but also providers them certainty of hours,” Mcdonald said. “The proposal would have limited employers’ options, which limits employees

options when you think it through.”

The department said it’s letting the current effort expire “due to the constraints of the regulatory process” and expects the issue will be revisited with the Legislature, which could pass a law implementing a comprehensive overhaul.

Assemblyman Phil Steck, a Colonie Democrat, said it’s appropriate to address

this issue legislatively, describing it as similar in nature to the minimum wage law the Legislature adopted in 2016.

He was confident legislation could be crafted that balanced the “two conflicting principles” inherent in giving employers flexibility and workers predictability.

It’s not clear, though, how much appetite there is among state lawmakers

to reform on-call scheduling. The changes floated by the department generated concerns from both sides of the aisle.

The state’s decision was described by the businessbacked coalition Unshackle Upstate as a “step in the right direction” toward making New York more business friendly.

In 2016, national retailers Aeropostale, Disney, Zumiez, Pacsun, Carter’s and David’s Tea struck a deal with then-state Attorney General Eric Schneiderman to end the use of call-in scheduling in New York. In 2015, the office secured agreements from Abercrombie & Fitch, Gap and the parent company of Bath & Body Works and Victoria’s Secret.