November 10, 2017
Albany, NY

Governor Cuomo Announces New Regulations on Employee Scheduling

TOP Governor Cuomo Announces New Regulations on...

Regulations Achieve Fair, Predictable Scheduling for Workers and Flexibility for Employers 

Follows Hearings and Testimony from Workers, Advocates, Industry Experts and Business Owners

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Governor Andrew M. Cuomo today announced the State Labor Department is advancing regulations on "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 they start. These practices often leave workers scrambling to find child care and force them to miss appointments, classes or important family commitments. This affects workers in retail and other service sectors and can cost them hours and pay they had already budgeted. Once finalized, these scheduling protections will apply statewide.

"In New York, we have achieved nation-leading success in workers' rights, and we will continue to fight to protect all hard-working New Yorkers," Governor Cuomo said. "The regulations advanced by the Department of Labor will increase fairness for workers and allow employers to retain flexibility."

In September, the Governor directed State Labor Commissioner Roberta Reardon and the Department of Labor to hold public hearings on the issue of employee scheduling.  After four hearings and many hours of testimony from workers, advocates, industry experts and business owners, the Department of Labor developed these regulations to give workers a voice in their own schedules, thereby safeguarding the most vulnerable low wage workers. At the same time, businesses will retain the flexibility they need to run successfully. 

For workers, the regulations:

·         Establish a 14-day advance notice standard for scheduling and provide 2 hours' extra pay for last-minute assignments.

·         Expand 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.

For employers, the regulations:

·         Provide flexibility by allowing new shifts to be offered without a premium during the first two weeks of a worker's employment, permitting worker shift swaps and substitutions without penalty and allowing for weather related cancellations without penalty with 24-hours' notice.

·         Impose no blanket prohibitions or mandates - employers retain control over their scheduling practices and those who provide predictable scheduling will see no additional compliance costs.

The full regulation can be viewed here: www.labor.ny.gov/schedulingregs

This rulemaking is subject to a 45-day comment period after publication in the November 22nd State Register.  If you would like to submit a comment on this proposed regulation, you may do so at: hearing@labor.ny.gov

At each of the four hearings, testimony from employers, employees and advocates for both groups was heard.  Business and industry advocates agreed that many industries require flexibility and employers need a mechanism to adjust when unpredictable circumstances arise.  These circumstances might include an employee calling out or leaving work unexpectedly due to illness or other unavoidable situation, delays in material deliveries or inclement weather. 

Workers delivered testimony focused on the hurdles that unpredictable schedules create for them.  Additionally, they expressed frustration at their lack of input in their schedules and the challenge of planning their lives around schedules that vary radically from week to week, a consequence of which can be unsteady income.  This can significantly impact a worker's ability to plan for childcare and pay for necessities.

Furthermore, workers testified to the realities of not knowing until hours before their shift whether they'll be needed, or experiencing a sudden involuntary change of schedule.  Part-time workers expressed that they are often expected to be available for full-time hours even though they know they'll work far less than that, limiting their ability to find a second job should they choose.

Both groups expressed the view that, through fairer and more predictable scheduling, reduced employee turnover, increased attendance, enhanced worker loyalty and a more balanced environment for employees could be achieved.  The regulations advanced by the Department of Labor address the concerns of workers and businesses alike and will create a more stable, consistent environment for scheduling in New York workplaces.

Full testimony and videos of each hearing can be found online at: www.labor.ny.gov/scheduling

New York State Department of Labor Commissioner Roberta Reardon said, "At the beginning of this process, we set out to strike a fair balance in scheduling for both workers and employers. The regulations advanced today accomplish just that.  I thank those who testified at our public hearings for their input.  All viewpoints were carefully considered and I'm proud to announce these regulations that I believe will incentivize fairness in scheduling practices throughout New York."

Ted Potrikus, President and CEO, New York State Retail Council said, "Governor Cuomo and Commissioner Reardon have taken deliberative steps toward a goal we share with them — providing New Yorkers with the job opportunities, schedule transparency, and flexibility they want while helping New York retailers win and grow in a challenging international marketplace.  Jurisdictions throughout the country have rushed headlong into hastily-drafted proposals that discourage employers from providing scheduling strategies that employees today want and need.  We applaud Governor Cuomo and Commissioner Reardon for being the first to recognize the complexity of this issue and for the care they've taken to date to craft a consistent and uniform policy for the entirety of New York State."

Stuart Appelbaum, President, RWDSU said, "On-call scheduling is devastating for retail workers. You need to put your life on hold and be available for work - regardless of whether you will be called in or paid. If you are a part-time worker, the uncertainty of your schedule means you can't arrange for a needed second job. If you are a parent, you don't know if you are going to need child care. If you want to continue your schooling, you can't sign up for classes without knowing your availability. Today's action by Governor Cuomo to address on-call scheduling across the state will create another layer of protections for workers and ensure that workers will gain more control over their own lives and their ability to earn a living."

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