Unshackle Upstate Senate Hearing Testimony – Proposed NYS Employer Scheduling Mandates
January 5th, 2018
Testimony provided at the request of the New York State Senate Committee on Commerce, Economic Development and Small Business and the Senate Administrative Regulations Review Committee January 4, 2018
First, my sincere thanks to Senator Jacobs, Senator Boyle and their legislative colleagues for providing the opportunity to discuss the New York State Department of Labor’s Proposed Rulemaking on Employee Scheduling, or what is often referred to as “on-call” or “predictive scheduling” regulations.
Unshackle Upstate is an education and advocacy coalition made up of Upstate New York’s large regional chambers of commerce, trade associations, employers and taxpayers from all parts of Upstate New York.
Your willingness to hear our concerns about this issue is sincerely appreciated. Rather than regurgitate statistics regarding tax burden, business climate, population decline, out-migration or a shrinking labor market – of which you are no doubt aware – I would like to use this opportunity to speak frankly on behalf of the Upstate’s employers, taxpayers and its economy.
We are hurting.
And in all likelihood, we will continue to struggle until decision makers in Albany recognize the simple truth that economic growth will only return to Upstate when decisions are made to make economic investment attractive in Upstate. Unfortunately, regulatory actions of late (often one-size-fits-all mandates) reinforce the state’s anti-business reputation, making New York State less attractive to business growth, job creation or new investment from existing or prospective businesses.
The DOL’s “on-call / predictive scheduling” regulation, as proposed, will be the latest laceration for the employers that are struggling to survive and thrive within New York’s “death-by-1000-cuts” regulatory construct.
Before addressing the specifics of the Department of Labor’s proposed scheduling regulations, I want to make an important point: New York State already has regulations in place (12 NYCRR § 142-2.3) that address the issue of “on call” scheduling. Instead of adopting new regulations relating to “on call” scheduling, we should be asking this question:
Why isn’t the Department of Labor adequately enforcing the state’s existing regulations relating to “on call scheduling”?
This is not (or should not be) news to the Department of Labor. In written testimony that he submitted to DOL in October, State Senator Brad Hoylman noted that the state’s current regulations “appear to suffer from weak enforcement.” Other testimony submitted to DOL made this point as well.
New Department of Labor regulations will not solve this problem. The better place to start is having the Department of Labor and the Attorney General enforce the state’s existing regulations.
I urge you to ask the state Department of Labor why they appear to be unable to adequately enforce the state’s existing regulations. And it should also be asked what the DOL intends to do to enforce their proposed regulations that they are not currently doing to enforce their existing regulations.
Returning the Department of Labor’s proposed regulations, Unshackle Upstate and its partners have heard from every type of employer expressing serious concern about the potential negative impact both the proposed 14-day predictive scheduling mandate and the proposed 72 hour shift cancellation notification mandate.
We have heard from:
- Manufacturers that must contend with equipment malfunctions, supply chain disruptions or last minute orders to fill;
- Health care and non-profit service providers that must deliver services around the clock, and are always responding to changing patient needs with no ability to reasonably predict demand for their services.
- Weather dependent and seasonal businesses like car washes, ski resorts, golf courses, amusement parks, hotels, inns, bed and breakfasts, roofers, plowers, landscapers, ball parks, and festival vendors.
- Contractors and builders who operate under a progression of work paradigm that once disrupted by weather, equipment malfunction, worksite safety protocols or material shipping delays are forced to move their project forward under a different and changing schedule.
- Consider utility and infrastructure repair, industries that by their nature often operate on an emergency basis.
- Small, independent businesses often struggle with changing consumer demand and habits, base their scheduling on the punctuality and reliability of their clients or customers, and must have the flexibility to make changes in their operating hours and business model to accommodate the demands of their target market.
- This is only truer for new establishments whose proprietors have decided to take entrepreneurial and financial risk to start an enterprise in an effort to provide more opportunity for themselves, their employees and their communities.
Collectively, the impacted industries I have just listed — manufacturers, health care, non-profits, construction, tourism and small business – are what’s left of Upstate New York’s economy. Their ability to succeed, grow and hire is yet again placed square in the crosshairs of a new, onerous, costly and broad-brush state regulation.
If implemented, employers will face a new regulatory burden that carries with it: administrative costs, frictional and productivity costs, labor costs and compliance costs. The negative effect of which is exponentially worse for smaller, independent employers that often lack formal HR departments and whose profit margins, market share and ability to adjust pricing or alter costs are far different than their multi-state corporate competitors.
The Home Depots of the world will adapt and survive. The independent, family-owned hardware store up the street may not.
It is this one-size-fits-all nature of the Department of Labor’s proposed regulations that is most concerning. When New York State set its new minimum wage scale in 2016, it did so recognizing that small business faces different challenges than national corporations and that Upstate’s economy is very different than Downstate.
Every state or municipality that has enacted predictive scheduling regulations has included exemptions for small to medium-sized business, and / or included provisions applying to only multi-state corporations.
Oregon, the only state to impose a statewide scheduling mandate, exempted businesses with fewer than 500 employees.
Legislation exists in New York State that reflects this. S.3486/A.2007, sponsored by Senator Peralta and Assemblywoman Fahy, exempts small employers and S.71-A / A.1518, sponsored by Senator Hoylman and Assemblywoman Rozic, applies only to multi-state chain establishments.
We remain opposed to new regulatory mandates being imposed on overburdened employers in an already struggling economy. The Department of Labor should at the very least consider the use of a proverbial scalpel to address this problem, rather than the blunt instrument that the agency has proposed.
The regulation as written also raises serious concerns for seasonal and weather dependent businesses. The application of its “act of God” exemption is vague and ambiguous. Inclement and unpredictable weather is part and parcel to life in Upstate. Summer lighting storms and winter lake effect snows come and go with little thought to giving notice.
These frequent occurrences often force employers to close their doors for the safety of their employees and their customers. A poorly-timed lake effect shower may cause a fitness studio to cancel their 5:30 AM class or an after-school children’s recreation program to cancel for the night.
Poor weather can ruin an entire fiscal year for contractors, ski areas, golf courses or tourism oriented businesses.
These employers have already lost revenue because of circumstances beyond their control, now New York State wants to financially punish them further? Perhaps it is preferred that the business stayed open regardless of hazard to their staff and customers?
Having lived in Buffalo, Rochester and the Southern Tier, I can tell you that certain days of the year in Upstate, every business is weather dependent.
The New York State Department of Labor’s proposed regulations for employee scheduling simply ignore the reality of operating and growing a business. If implemented as is they will serve as yet another detriment to the economy of Upstate and all of New York.
Thank you for this opportunity again and thank you for bringing more attention to the issue of overregulation in New York.
Testimony delivered by Greg Biryla, executive director, Unshackle Upstate.