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NYACS Members Testify on Employee Scheduling Proposal

Convenience retailers in New York explained how a proposed predictive scheduling system would negatively impact their business.
January 8, 2018

ALBANY, N.Y. – At a New York State Senate hearing on January 4, two members of the New York Association of Convenience Stores (NYACS) were among 12 employer representatives testifying about the negative business impacts of Governor Cuomo's proposed employee scheduling restrictions.

Ron Benderson, president of Delta Sonic Car Wash Systems (Buffalo), and Steve Doheny, co-owner/ operator of Doheny Oil Co. (Ballston Spa), gave compelling remarks before the Senate Committee on Commerce, Economic Development, and Small Business and the Senate Administrative Regulation Review Commission.

A YouTube video of the entire hearing is available. Benderson's testimony starts around the 1:14 mark and Doheny’s around 2:12. They described the ramifications for their respective companies and explained why the proposed “predictive scheduling” system won't work in the real world.

After listening to the nearly three hours of testimony, state Senator James Tedisco, a vocal opponent of the new regulations, remarked that "the jury is in, and the verdict is, ‘guilty of government malpractice.’"

Many speakers and state senators said such a far-reaching proposal should be debated in the Legislature, not unilaterally imposed as an executive order as Governor Cuomo intends. Unless he formally submits it to the Legislature, the Senate cannot prevent it from being enacted administratively. They nevertheless held the hearing to shine a public light on employer impacts.

Key provisions of the proposed regulations are:

  • ​Private-sector employers of all sizes would have to post their work schedule 14 days in advance.
  • If you called in an employee to work a shift that was not scheduled at least 14 days in advance, they would be entitled to an additional two hours of call-in pay, with limited exceptions.
  • If you canceled an employee's shift within 72 hours of the start of the shift, they would be entitled to four hours of call-in pay, with limited exceptions.
  •  If you had someone on call for any shift, even if they aren't called in, they would be entitled to at least four hours of call-in pay, with limited exceptions.
  • If an employee were required to check in with you within 72 hours of the start of a shift to confirm whether to report to work, they would be entitled to at least four hours of call-in pay, with limited exceptions.

NYACS also filed written testimony with the Senate, lamenting that the “futility of trying to governmentally impose certainty on an industry that is inherently unpredictable,” and disputing the Cuomo administration’s claim that the proposed system “does not impose any mandatory costs on the regulated community.”

“These regulations, if enacted, would unequivocally increase costs and reduce flexibility for 8,500 New York convenience stores, many of them small, independent, family-run enterprises,” wrote NYACS President Jim Calvin. “As one of our members put it, penalizing employers because life happens is unjust, unfair, and unnecessarily raises costs.”

“Convenience store operators know that employee scheduling is a two-way street,” Calvin continued. “In today’s hypercompetitive labor market, any retailer who thinks they can dictate days and hours without collaborating with each employee won’t be in business very long. To build teams of productive associates, our stores have endeavored to achieve the proper balance between the scheduling needs of the employee and the business. Their success is reflected in a survey conducted by NACS last year showing that 70% of convenience store employees appreciated that their employer offered a flexible work schedule.”

However, these regulations would likely diminish convenience stores’ ability to maintain that flexibility. Calvin noted that an Employment Policies Institute survey found that after the City San Francisco enacted predictive scheduling regulations in 2015, 35% of affected employers became less flexible with employee schedule changes.

Only Oregon currently has a statewide predictive scheduling law. Unlike the New York proposal, however, that law only applies to employers in the retail, hospitality and food services industries with 500 workers or more, and requires posting the schedule seven days in advance.