Governor Directs Labor Commissioner to Hold Public Hearings on Employee Scheduling

Department of Labor Hearings to Solicit Public Comment on Potential Regulations to Provide Predictable Schedules

On Saturday, September 9, Governor Andrew M. Cuomo directed the Commissioner of Labor to schedule public hearings on employee scheduling concerns. The New York State Department of Labor will hold these hearings to solicit public comment on how best to address what's known as "just-in-time," "call-in" or "on-call" scheduling, common practices that allow employers to schedule or cancel workers' shifts just hours before or even after it starts. This affects workers in retail and other service sectors and can cost them hours and pay they had already budgeted.

These practices often leave workers scrambling to find child care and force them to miss appointments, classes or important family commitments. Once finalized, these scheduling protections will apply statewide. 

"These hearings will help guide us in crafting sensible protections to provide New Yorkers with fair and predictable work schedules," Governor Cuomo said. "This will give hard-working men and women a platform to have their voices heard, and allow us to take another step toward a fairer, stronger New York for all." 

Before regulations are formally advanced, the New York State Department of Labor will solicit input from workers and industry professionals on how best to ensure that workers can better predict their schedules and are compensated when subjected to just in-time/on-call scheduling practices. 

The schedule for the public hearings is as follows: 

  • Thursday, September 28 in Albany 
  • Tuesday, October 17 in New York City 
  • Thursday, October 26 in Binghamton 
  • Tuesday, November 14 in Buffalo 

The Department of Labor will issue a notice identifying the specific times and locations for the hearings.

New York State Department of Labor Commissioner Roberta Reardon said, "New York State's greatest resource is our hardworking, dedicated workers and we must do everything we can to protect them. We can do better, bringing a higher degree of fairness to scheduling practices without penalizing businesses that are creating the important jobs that are growing our economy. Hearing from the public is an important step in striking that balance." 

While industries like retail have historically accommodated workers who choose part-time work because of other obligations, or to supplement their income, today's part-time workforce is comprised predominantly by workers who would prefer to work more hours than they are typically scheduled to work. These individuals, sometimes referred to as involuntary part-time workers, would prefer full-time employment, but are working part time because their hours have been cut back or they are unable to find a full-time job. As of August 2017, 5.3 million Americans were employed part time for economic reasons. Retail, food service and construction account for about 40 percent of all involuntary part-time work in the country. 

To stay competitive, many service sector employers are transferring business risks - like unexpected changes in customer demand - from their balance sheets to their low-wage, hourly employees. Some employers use sophisticated scheduling software to automate just-in-time scheduling, which cuts labor costs by scheduling employees at 15-minute increments that mirror the highs and lows of customer demand. Software-driven staffing treats workers like integers in an algorithm, allowing employers to adjust staffing levels in real time, calling workers in to meet unexpected customer demand, and sending them home early when store traffic is light. As a result, employee work hours and income can vary widely from week to week, greatly impacting their ability to pay rent, pursue an education, and take care of their families. 

The New York State Department of Labor currently requires that employees be paid a minimum for showing up at a worksite at the employer's request, even if the employee is immediately sent home upon reporting to work. This exceeds federal Fair Labor Standards Act requirements, which guarantee a minimum wage for all hours worked and overtime pay after the 40th hour worked in a week. Workers covered within the framework of New York's regulation, including as many as 2 million workers in industries and occupations like retail and food service, are entitled to call-in pay, or 'show-up pay' when they physically report to work and are then sent home before the start or end of the scheduled shift because they are not needed. Call-in pay is required for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage. 

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