Employee Scheduling Regulations

The Department of Labor has filed proposed rules to adjust the employee scheduling regulations to benefit employees for their “Just-In-Time,” “Call-In,” or “On-Call” scheduling. The full list of proposed changes to the regulations were posted November 22, 2017 in the State Register. The proposed regulations apply to all occupations and industries that are protected by the Minimum Wage Order for Miscellaneous Industries and Occupations. The Employee Scheduling proposed rules are as follows:

• Reporting to work – An employee who, by request or permission of the employer, reports for work on any shift shall be paid for at least four hours of call-in pay.
• Unscheduled shift – An employee who, by request or permission of the employer, reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift shall be paid an additional two hours of call-in pay.
• Cancelled shift – An employee whose shift is cancelled within 72 hours of the scheduled start of such shift shall be paid for at least four hours of call-in pay.
• On-call – An employee who, by request or permission of the employer, is required to be available to report to work for any shift shall be paid for at least four hours of call-in pay.
• Call for schedule – An employee who, by request or permission of the employer, is required to be in contact with the employer within 72 hours of the start of a shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.

In calculating the rate of pay an employer must pay their employees, if the employee is required to actually work, they will receive their actual pay or overtime, whichever is applicable, less any allowance outlined above. If, on the other hand, the employee does not actually work, the employer is required to pay the employee at the basic minimum hourly rate with no allowances. These payments are not payments for time worked or work performed and therefore are not included in hours for purposes of calculating overtime, pension, or any other benefits provided by the employer. If a normal shift for an employee is less than four hours, the call-in-pay for “reporting to work” and for “cancelled shifts” may be reduced to lesser number of hours that the employee normally works for that shift, as long as the employee’s total hours worked, or scheduled to work, for that shift do not change from week to week.

The proposed regulations do not apply for:

• Employees covered under a collective bargaining agreement that expressly provides for call in pay.
• To employees during work weeks when their weekly compensation exceeds 40 times the minimum wage. For instance, if the minimum wage was $10 per hour, a workers wage whose weekly wage exceeds $400 would not be covered by these new requirements. Weekly wages do not affect the applicability of reporting to work call in pay, as they are actually working these hours.
• An unscheduled shift for:
  • New workers during their first two weeks of employment.
  • A regularly scheduled employee who volunteers to cover a new and additional shift during the first two weeks that shift is worked.
  • A regularly scheduled employee who volunteers to cover a shift that had been scheduled at least 14 days in advance to be worked by another employee.
  • To a cancelled shift when the employee requested time off or because of an act of God or other event outside of the employer’s control.

If you have on-call staff, we encourage that you familiarize yourself with the proposed regulations. If you have any questions, feel free to contact us.