Under Pressure ... Continued
In response , on October 25 , 2017 , the NYSDOL adopted an emergency regulation , effective October 6 , 2017 , reaffirming the validity of the 13-hour rule . The emergency regulation amends the minimum wage regulations so that employers are not required to pay for meal periods and sleep times that are excluded from hours worked under the FLSA for a home care aide who works a shift of 24 hours or more . The emergency regulation provides that meal periods and sleep periods that are not compensable for FLSA purposes are also excluded from the calculation of hours worked in New York State .
The emergency regulation has been adopted on an emergency basis and will expire on January 3 , 2018 . The NYSDOL intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rulemaking in the State Register . The NYSDOL will likely continue to extend this regulation on an emergency basis until the permanent rule is adopted . A memorandum with more detailed information on the status of compensation to live-in home care attendants may be obtained here .
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Proposed New York Regulations on Call-In Pay On November 10 , 2017 , the NYSDOL announced a Proposed Rule on “ call-in ,” or “ on-call ” scheduling ( the “ Proposed Rule ”). The Proposed Rule applies to most employees subject to the Minimum Wage Order for Miscellaneous Industries and Occupations ( the “ Miscellaneous Minimum Wage Order ”), including those in the home care industry .
The Proposed Rule requires covered employers to either give significant advance notice of changes in employee schedules or pay additional amounts to employees scheduled to work on short notice . On November 22 , 2017 , the Proposed Rule was published in the State
Register and is subject to a 45-day comment period . The deadline for submitting comments to the NYSDOL on the Proposed Rule is January 8 , 2018 . Following the comment period , the Proposed Rule will then be subject to either modification or adoption as written .
Currently , New York ’ s rules on call-in pay state : “[ a ] n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours , or the number of hours in the regularly scheduled shift , whichever is less , at the basic minimum hourly wage .” This minimum payment is often referred to as “ call-in pay .” Additionally , under current law , employers are generally free to schedule , and , when necessary , cancel shifts before employees report for work , without incurring any additional payment obligation .
The Proposed Rule would create a number of new circumstances where non-exempt employees will be eligible to receive “ call-in ” pay , including the following :
• “ Call-in Pay ” for Reporting to Work at the Employer ’ s Request or Permission . An employee who , by request of the employer , reports for work on any shift shall be paid for at least four ( 4 ) hours of “ call-in pay .” Under the Proposed Rule , “ call-in pay ” for hours actually worked are compensated based on the employee ’ s regular rate of pay — not the minimum wage . Call-in pay for hours that are not actually worked must be compensated at the minimum hourly wage of the locality .
• “ Call-in pay ” for Unscheduled Shifts . The Proposed Rule states that a shift that is not scheduled at least fourteen ( 14 ) days in advance is an “ unscheduled shift .” Where an employee “ by request or permission of the employer ” reports to work for an unscheduled shift , the employer must pay two ( 2 ) additional hours of “ call-in pay .”
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31 Adviser a publication of LeadingAge New York | Fall 2017