Category: Employment Law

Call-in Pay

New York Call-In Pay Requirements

Employees who don’t work a full shift might be entitled to additional pay beyond their clocked hours. New York law addresses this complicated topic as “call-in pay.” The legal requirements vary based on industry, and for many employees being eligible for “call-in pay” won’t result in additional income.

Hospitality Industry Call-In Pay

A special set of wage rules covers New York employees working in the hospitality industry. These requirements generally apply to any employee working in a restaurant or hotel.

Hospitality employees exempt from minimum wage and overtime are not eligible for call-in pay, unless offered by their employer beyond what the law requires.

Non-exempt restaurant and hotel employees who report to work (whether scheduled or called in) must receive at least their “applicable wage rate” for at least:

  • 3 hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less;
  • 6 hours for two shifts totaling six hours or less, or the number of hours in the regularly scheduled shift, whichever is less; and
  • 8 hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.

An employee’s “applicable wage rate” for time actually in attendance at work is either the regular or overtime rate of pay minus any “customary and usual” tip credit. For the remaining time owed under the call-in pay provision, the applicable wage rate is the basic hourly minimum wage with no tip credit subtracted.

A “regularly scheduled shift” is a “fixed, repeating shift that an employee normally works on the same day of each week.” Employees whose schedule varies have no regularly scheduled shift.

Call-In Pay for Other Employees

For most other private-sector (non-government) employees, call-in pay is addressed in the New York “Minimum Wage Order for Miscellaneous Industries and Occupations.” Again, the call-in pay provision doesn’t apply to employees exempt from minimum wage and overtime under state law.

For non-exempt employees, the wage order provides that:

“An 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.”

However, this doesn’t mean that an employee who works less than 4 hours will necessarily receive additional pay beyond their hours worked.

Confusingly, the provision is interpreted relative to overall compensation for a workweek. If total pay for the week exceeds minimum wage for the hours actually worked plus the extra hours attributable to the call-in pay provision, then no additional pay is required by the wage order.

Take, for example, an employee who works 6 hours each day Monday through Thursday, but is sent home after only 2 hours on Friday. If the employee’s wage rate is exactly minimum wage, then the call-in pay provision would entitle them to 2 additional hours of pay. But if their regular pay rate exceeds minimum wage enough that their total base pay for the week is more than 28 times the minimum wage (26 hours worked plus the 2 hours “due” for on-call pay), then the call-in pay does not require additional compensation.

Agreed Upon Call-In Pay

The above provisions are the legal defaults under New York State law, but employers may agree to pay more than is required either on an individual basis, by policy, or under a union contract. Once a company says it will pay call-in pay differently, it must do so. Any changes, if contractually permitted, would need to be made prospectively (i.e., for future pay periods after the change in compensation practices is announced).

New York City Fair Workweek Law

The New York City Fair Workweek Law provides certain scheduling protections to covered fast food and retail workers within NYC. In some cases, this local law would prohibit employers from calling in employees on short notice or require additional compensation beyond the statewide call-in pay requirements.

Review Your Call-In Pay Procedures

If you are responsible for setting, reviewing, or paying the compensation of non-exempt employees in New York, you should double-check your company’s call-in pay rules, if any. Voluntarily paying more than required usually isn’t a legal problem; not paying enough certainly could be. Underpaying wages due can result in significant penalties beyond compensating employees for lost pay.

 

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OFCCP Data Disclosure

Federal Contractors Have Short Window to Object to OFCCP Data Disclosure

On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request from a journalist with the Center for Investigative Reporting. This request was for disclosure of EEO-1 Type 2 Consolidated Report data filed by federal government contractors and subcontractors between 2016-2020. The OFCCP is offering covered employers an opportunity to prevent their company’s reports from being made public. But the time available to object to the OFCCP data disclosure is limited.

Freedom of Information Act

The U.S. Freedom of Information Act allows the public to request records from federal agencies. The government must provide available records, subject to various exceptions.

FOIA Exemption 4 protects from disclosure: “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

EEO-1 Type 2 Reports

All private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria must file EEO-1 reports annually. These reports provide the federal government demographic workforce data, including data by race/ethnicity, sex, and job categories.

EEO-1 Type 2 reports pertain to employers with multiple establishments. Through these reports, employers submit annual demographic data for all U.S.-based employees across their locations.  Employers with only a single establishment typically would file the EEO-1 “Type 1” report.

The pending request FOIA request is limited to Type 2 reports. Accordingly, the OFCCP is not planning to provide data for single-establishment contractors.

Objections to OFCCP Data Disclosure

To protect trade secrets and other potentially sensitive commercial and financial information, the OFCCP is permitting contractors to file an objection to the FOIA request. After an initial deadline of September 19, 2022, the OFCCP is now accepting opt-out requests through October 19, 2022.  Subject contractors who don’t object within this time frame will be assumed to have no objections to disclosing their company’s demographic data.

The OFCCP suggests that contractors address the following questions in any objections:

  • Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
  • Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed?
  • Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
  • If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
  • Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.

To facilitate written objections to the request, the OFCCP has created a Submitter Notice Response Portal.

Additional information for covered contractors is available through the OFCCP’s Submitter Notice Response Portal Frequently Asked Questions.

 

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Military Caregiver Leave

FMLA Military Caregiver Leave

For most qualifying purposes, the Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of unpaid leave per year. However, one form of leave can last for much longer. An employee who qualifies for “military caregiver leave” has a right to up to 26 weeks of leave to provide care for an ill or injured military servicemember. But this form of leave is limited in other ways.

FMLA Eligibility

As a threshold for eligibility, an employee must have been with the employer for at least one year and have worked more than 1250 hours in the past 12 months. In addition, the employee must work within a 75-mile radius of at least 50 total employees of the same employer.

For more on FMLA eligibility, read “Who Is an FMLA Eligible Employee?”.

FMLA Qualifying Circumstances

Employees most commonly take FMLA leave due to the birth/adoption of a child or due to a serious medical condition that they or a close family member is suffering.

FMLA leave is also available in two situations involving military service. These scenarios are respectively known as “qualifying exigency leave” and “military caregiver leave.”

Under the FMLA, employees are limited to 12 weeks of leave per year based on birth/adoption of a child, serious medical conditions, and qualifying exigencies. Only military caregiver leave has a separate maximum leave period.

Covered Servicemembers

Employees may be eligible for military caregiver leave based on the serious injury or illness of a family member who is a “covered servicemember.”

Covered servicemembers are current members of the U.S. Armed Forces, including a member of the National Guard or Reserves, who are either:

  • receiving medical treatment, recuperation, or therapy;
  • in outpatient status; or
  • on the temporary disability retired.

The above conditions must be based on a “serious injury or illness.”

Serious Injury or Illness

Under the FMLA, a “serious injury or illness” is one that a servicemember incurred in the line of duty on active duty that may cause the servicemember to be medically unfit to perform the duties of their office, grade, rank, or rating. Pre-existing injuries or illnesses aggravated by active duty service also qualify.

Family Relationship

To take military caregiver leave under the FMLA, the covered servicemember must be the employee’s spouse, child, parent, or next of kin.

Available Leave

An employee may take up to 26 weeks of FMLA to care for a covered servicemember. However, unlike other forms of FMLA leave, this leave is limited to a single leave period that does not recur annually. More specifically, the 26 weeks must be taken in a single 12-month period that begins when the employee first takes military caregiver leave for the particular servicemember and illness/injury.

Note; If the employee’s covered servicemember relative has a different serious illness or injury, then the employee may be eligible for another leave of up to 26 weeks in a new single 12-month period.

Certification

As with other forms of FMLA leave, employers may require employees to provide documentation certifying their eligibility to take military caregiver leave.

The U.S. Department of Labor provides an optional “Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave under the Family and Medical Leave Act” form.

Process FMLA Requests Carefully

As with all forms of FMLA leave, an employee doesn’t have to specifically request “military caregiver leave” or even “FMLA leave.” Once the employee provides enough information that they may qualify for leave protected by the FMLA, employers must provide appropriate documentation of employee rights and eligibility. Failing to do so or to designate leave as FMLA leave could result in an employee retaining the right for protected leave at a later date, among other potential negative consequences to the employer.