More Business Killing Regulation

February 2, 2018

Unfortunately, New York has a habit of creating policies that are punishing to businesses. In the past two years, business owners in New York state have had to ingest several onerous mandates such as new wage orders, higher minimum wages, and a new paid family leave policy. Now the Department of Labor is considering another mandate, known as the “call-in pay” regulation that will, if adopted, place additional strain on those business effected. In short, the “call-in pay” regulation would require employers to provide employees with a 14-day work schedule and, if there is deviation from that schedule, the employer must pay the employee “call-in pay.” The amount of “call-in pay” depends on when and how the employee’s schedule deviates. In some cases, an employer would be required to be pay an employee 4-hours at minimum wage.

The intention of this proposed regulation is to address challenges some workers face with erratic work schedules. Unfortunately, as is too often the case, the proposed regulation instead of taking a reasonable approach to address the issue, takes a one-size-fits-all approach and fails to balance the interest of the employee and the employer.

While this mandate will have a substantial impact on all businesses effected, its impact will be significantly negative for small businesses. While national chains and big box stores have thousands of employees, small businesses operate with far fewer employees. An employee calling in sick for a national retail store will cause less disruption and scheduling issues than an employee calling in sick at a small business that employs less than 10 individuals. Presumably, in this type of situation, the small business owner would either have to cover the shift themselves or call in another employee to fill the shift. Under the proposed regulations, if an employee was called in to cover the shift as described above, the employer would have to pay the employee the additional call-in rate along with their regular wage. Penalizing a business for scheduling issues beyond their control is excessively punitive.

Secondly, it is unclear why the Department of Labor has settled on mandating a 14-day schedule as opposed to a shorter period. In today’s business world, circumstances can change quickly. Orders can come in, be filled and be out the door to customers in less than a day. On the other hand, customers have more options and years of loyalty to a supplier is no longer the reality. Penalizing an employer for his or her inability to predict work flow 14 days in advance illustrates that the Department of Labor does not understand how modern business works. A more balanced workable approach would be a shorter time-period.

Finally, the proposed regulations fail to provide an exemption for weather dependent businesses. What happens if, within the 14-day scheduling period, weather plays a role in the employer’s ability to provide a service. For example, what if there is no snow for snow removal company to plow. Would the company still have to provide call-in pay for the employees whose work schedule was canceled? Again, the proposed regulations are divorced from how business works and at the very least, weather dependent business should be exempted from the regulations.

These proposed regulations have yet to be adopted by the Department of Labor. I and other legislators have written to the Department of Labor expressing our concerns over the regulations. It is my hope that the Department listens to our concerns and at the very least amends the regulations to better match the realities of today’s business. If the Department of Labor goes ahead and adopts the regulations as proposed, I would look to work with my legislative colleagues, to enact legislation that would overturn the Department’s adoption of the call-in pay regulations.

If you have any questions or comments on this or any other state issue, or if you would like to be added to my mailing list or receive my newsletter, please contact my office. My office can be reached by mail at 200 North Second Street, Fulton, New York 13069, by e-mail at barclaw@nyassembly.gov or by calling (315) 598-5185. You may also find me, Assemblyman Barclay, on Facebook.