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New York Retailers Combat Proposed ‘Predictive Scheduling’ Regulations

Hundreds of convenience stores have filed comments objecting to the proposed rules.
December 11, 2017

​ALBANY – New York convenience store operators are giving the state Labor Department an earful about the negative impacts of “predictive scheduling” regulations they are threatening to unilaterally impose on employers statewide.

Retailers representing hundreds of convenience stores have filed formal comments objecting to the proposed rules, which would add costs and curtail flexibility for employers. The New York Association of Convenience Stores (NYACS) is urging all retailers to file comments before the deadline of January 5, 2018. After that, the Cuomo administration intends to enact the regulations without any vetting by the state legislature.

“Coming on the heels of minimum wage legislation that is gradually rising to $15 an hour, and a paid family leave mandate that is taking effect January 1, this is the last thing beleaguered New York small businesses need,” said NYACS President Jim Calvin. “By arbitrarily requiring C-stores to schedule a full two weeks in advance, they are trying to throw a saddle on a wild mustang. Our industry that utterly defies predictability.”

“They must think we’re mistreating or abusing our employees. That’s far from the case,” Calvin continued. “Most of our members use a collaborative approach to scheduling that provides as much flexibility as possible to each of the students, working mothers, senior citizens and other individuals who staff their stores. In fact, an October NACS survey found that 70% of convenience store employees appreciated the flexible work schedule their employer offered.”

Key provisions of the proposed regulations are:

  • Employers would have to post the schedule 14 days in advance.
  • If you call 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. There are exceptions for new hires, higher-paid full-time employees, and employees who volunteer to substitute for a scheduled co-worker.
  • If you cancel an employee's shift within 72 hours of the start of the shift, they would be entitled to four hours of call-in pay. There are exceptions for higher-paid full-time employees, workers who cancel the shift themselves, and extreme weather or other circumstances beyond the employer’s control that force the store to close.
  • If you have 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. There is an exception for higher-paid full-time employees.
  • If an employee is 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. There is an exception for higher-paid full-time employees.
  • Payments for the above-referenced extra two or four hours of call-in pay "shall be calculated at the basic minimum hourly rate with no allowances. Such payments are not payments for time worked or work performed and need not be included in the regular rate for purposes of calculating overtime pay."
  • The existing provision requiring employers to pay at least four hours' wages to an employee who reports to work would remain in place. However, there would be a new provision addressing shorter work days. If the employee normally works a shift shorter than four hours, you could reduce that minimum to the number of hours in that shift.

Written comments may be submitted by mail or email to Mr. Michael Paglialonga, NYS Department of Labor, State Campus, Building 12, Room 509, Albany NY 12240, regulations@labor.ny.gov.

Samples of comments submitted by NYACS member retailers to date are attached. See the full text of the proposed regulations.