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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