CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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June 2, 2017

New York City Retail and Fast Food Employers Prohibited from Certain Scheduling Practices

On May 30, 2017, New York City Mayor Bill de Blasio signed into law a “Fair Workweek” package of bills prohibiting retail and fast food employers from engaging in certain scheduling practices. The stated purpose of the laws is to allow employees to more accurately predict weekly income, as well as their day-to-day schedules, by restricting “on-call” scheduling. On-call scheduling occurs when an employer requires an employee to be available for work, to contact the employer, or to wait to be contacted by the employer in order to determine whether the employee must report to work. The laws will take effect after 180 days.

Retail Employers

Under the new law, “retail employer” means any employer that employs a retail employee at a retail business. A “retail business” refers to any entity with 20 or more employees that is engaged primarily in the sale of consumer goods at one or more stores within New York City. “Consumer goods” are defined as products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items. The number of employees working at a retail business includes all those performing work for compensation on a full-time, part-time, or temporary basis.

Retail employers are prohibited from engaging in the practice of on-call scheduling. They are further required to give advance notice of work schedules to their employees. Subject to certain exceptions, retail employers cannot cancel, change, or add work shifts within 72 hours of the start of the shift. Exceptions are limited to the following situations:

  • Employees may consent in writing to allow the employer to take otherwise prohibited action within the 72-hour period;
  • Employers may make changes where their operations cannot begin or continue due to:
    • threats to the retail employees or the retail employer’s property;
    • the failure of public utilities or the shutdown of public transportation;
    • a fire, flood, or other a natural disaster; or
    • a state of emergency declared by the President of the United States, governor of New York, or mayor of New York City.
  • Where the retail employee requests time off; or
  • Where two employees voluntarily trade shifts.

 

The law also requires a retail employer to: (1) post retail employees’ schedules 72 hours before the beginning of the scheduled hours of work; (2) upon request by a retail employee, provide a written copy of said employee’s work schedule for any week worked over the prior three years; or (3) upon request by a retail employee at the work location, provide the most current version of the work schedule for all retail employees at the work location. Retail employees must also be scheduled for no fewer than 20 hours of work during each 14-day period.

Retail employers with valid collective bargaining agreements in place at the time the law goes into effect will be subject to the law after the agreement’s expiration date.

Fast Food Employers

Certain fast food employers will be required to provide employees with an estimate of their work schedule upon hire and a work schedule 14 days in advance. The law will require a premium to be paid to employees for schedule changes made by the employer with less than 14 days’ notice to the employee (“schedule change premium”). Changes to schedules will include canceling, shortening, or moving shifts, adding additional hours to scheduled shifts, and adding shifts. The value of the schedule change premium depends on the amount of notice provided:

  • Less than 14, but at least 7 days’ notice $10 for each change to the work schedule in which: (1) additional hours or shifts are added; or (2) the date or start or end time of a regular shift or on-call shift is changed with no loss of hours;
  • Less than 14, but at least 7 days’ notice $20 for each change to the work schedule in which: (1) hours are subtracted from a regular or on-call shift; or (2) a regular or on-call shift is cancelled;
  • Less than 7 days’ notice to the employee $15 for each change to the work schedule in which: (1) additional hours or shifts are added; or (2) the date or start or end time of a regular shift or on-call shift is changed with no loss of hours;
  • Less than 7 days’ notice but at least 24 hours’ notice to the employee $45 for each change to the work schedule in which: (1) hours are subtracted from a regular or on-call shift; or (2) a regular or on-call shift is cancelled; and
  • Less than 24 hours’ notice to the employee $75 for each change to the work schedule in which: (1) hours are subtracted from a regular or on-call shift; or (2) a regular or on-call shift is cancelled.

 

 

Exceptions are limited to the following situations:

  • Where the employer’s operations cannot begin or continue due to:
    • threats to the employees or the employer’s property;
    • the failure of public utilities or the shutdown of public transportation;
    • a fire, flood, or other a natural disaster;
    • a state of emergency declared by the President of the United States, governor of New York, or mayor of New York City; or
    • Severe weather conditions that pose a threat to employee safety, although where the employer adds shifts to an employee’s schedule to cover for or replace another employee who cannot safely travel to work, such employer shall provide the replacing or covering employee with a schedule change premium.
  • Where the employee requests in writing a change in schedule;
  • Where two employees voluntarily trade shifts; or
  • Where the employer is required to pay the employee overtime pay for a changed shift.

Potential for State Pre-emption

The New York State Labor Department is currently preparing regulations that are expected to preempt certain provisions of the New York City Fair Workweek laws. For example, the regulations are expected to cover all minimum wage workers instead of just retail and fast food workers. Specifics of the forthcoming regulations have not yet been released.

Takeaway for Employers

Retail and fast food employers must develop their schedules sooner and distribute these schedules to employees to ensure that their scheduling and recordkeeping practices are in conformance with the new laws.

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If you have any questions regarding scheduling requirements for retail and fast food employers or the forthcoming regulations from New York’s Labor Department, please do not hesitate to contact us.