New York Department of Labor Abandons Proposed Predictive Scheduling Rule

In November 2017, the New York State Department of Labor (NYSDOL) issued a proposed predictive scheduling rule that would have imposed various call-in pay requirements when shifts are scheduled or cancelled on short notice or when employees are on call. On December 12, 2018, the NYSDOL issued a revised proposed rule containing numerous revisions based on feedback from the business community. Now, the NYSDOL has announced that it is abandoning the proposed rule altogether.

On March 1, 2019, the NYSDOL announced that it will allow the rulemaking process to expire, but it held open the possibility that it would revisit predictive scheduling “in the future.”

In the announcement, the NYSDOL stated:

Following a series of public hearings in late 2017, the Department of Labor issued proposed regulations to address what is commonly identified as “just-in-time,” “call-in” or “on-call” scheduling.

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. Comments on the revised rules, issued in late 2018, indicated that significant issues remained, and the revisions did not achieve the balance of certainty and flexibility for either workers or businesses.

At this time, due to the constraints of the regulatory process, the best course of action is to let this process expire and re-evaluate in the future, likely in concert with the Legislature, which would have a broader authority and better legal standing than Department of Labor regulations alone to balance the various needs of workers, businesses and industries.

We will continue to monitor this development, including any future regulations or rulemaking by the New York State Legislature and/or the NYSDOL.

As a reminder, retail and fast food employers in New York City are subject to the city’s own predictive scheduling rules, known as the Fair Workweek Law. The NYSDOL’s decision to abandon its proposed predictive scheduling rule does not affect Fair Workweek Law compliance.