Executive Summary: New York City’s new package of “Fair Work Week” laws, which go into effect on November 27, 2017, will create new and burdensome scheduling and record-keeping requirements for retailers and fast food establishments, including an obligation to pay a “schedule change premium” to fast food employees. Select highlights of the new laws are explained further below.
Retail Employees
Once the new laws take effect, retail companies who employ more than 20 workers in New York City will be prohibited from the following, with limited exceptions:
- Scheduling an on-call shift.
- Canceling a regular shift within 72 hours’ notice of the shift’s start time.
- Requiring an employee to work with less than 72 hours’ notice, unless the employee consents in writing.
- Requiring employees to call-in to confirm a shift with less than 72 hours’ notice of the shift’s start time.
Fast Food Employees
The “Fair Work Week” laws will apply to any fast food establishment that has a primary purpose of serving food and drinks, so long as that establishment is part of a chain with at least 30 locations in the aggregate nationwide. A “fast food” establishment is generally defined as a place where food and drinks are selected and paid for before eating and drinking.
14-Days’ Notice and Schedule Change Premium. Fast food establishments will have an obligation to provide a written schedule to an employee at least 14 days before the schedule takes effect. These schedules must be retained for three years. If there is a change to the schedule with less than 14 days’ notice, the employer will be required to pay the affected employee a “schedule change premium,” the amount of which varies based on the timing and type of change.
|
Nature and Timing of Scheduling Change
|
Additional shifts or hours added (per change)
|
Date or time change, but with no loss of hours (per change)
|
Hours subtracted from regular or on-call shift (per change)
|
A regular or on-call shift is canceled (per change)
|
|
Less than 14 days’ notice but at least 7 days’ notice
|
$10
|
$10
|
$20
|
$20
|
|
Less than 7 days’ notice but at least 24 hours’ notice
|
$15
|
$15
|
$45
|
$45
|
|
Less than 24 hours’ notice
|
$15
|
$15
|
$75
|
$75
|
There are exceptions to the premium pay rule, including, but not limited to, when the employer closes for severe weather, where an employee makes a written request to change his or her schedule, or when the shift change results in an employee earning overtime. The premium pay is not “working” time and need not be counted as part of overtime calculation.
Right of First Refusal – Additional Shifts. The new laws also restrict how fast food employers cover open shifts. Among other requirements, employers must make a written offer to current employees at the location where the shift is available first before turning to employees at other locations, hiring new employees or using “subcontractors,” a term that presumably encompasses third-party delivery services.
“Clopening” Ban. “Clopening,” which means working both the closing and opening shifts, will no longer be allowed, unless an employee requests or consents to work such shifts in writing. Specifically, “clopenings” are defined as where a fast food employee works two shifts with fewer than 11 hours between the end of the first shift and the beginning of the second shift when the first shift ends the previous calendar day or spans two calendar days. The employer will need to pay $100 for each instance that the employee works such shifts.
New Posting and Record-keeping Requirements. Fast food establishments will also have new posting and record-keeping requirements relating to employee work schedules. By way of example only, in addition to providing an employee his or her schedule in writing, a fast food employer will be required to post employee schedules in a conspicuous place at the workplace so that they are visible and accessible to all employees.
Non-profit Contributions. Fast food employers will be required to deduct and remit voluntary contributions to nonprofits when their employees make such a request in writing, if the recipient nonprofits meet certain requirements.
Retaliation
Employers are prohibited from retaliating against a retail or fast food employee who exercises or attempts to exercise his or her rights under the “Fair Work Week” laws.
Remedies
Aggrieved employees can file a complaint with the NYC Department of Consumer Affairs or bring a civil action within two years of a violation. Depending on which provision is violated, administrative penalties range from $200 to $2,500 per employee per instance. In a civil action, employees can recover, among other things, schedule premium payments, back pay resulting from retaliation, and reasonable attorneys’ fees. New York City can also bring a civil action based on an employer’s pattern and practice of violating these provisions, with civil penalties of up to $15,000.
Bottom Line: Absent court challenge, New York City retail and fast food employers should be prepared to comply with the “Fair Work Week” laws. Fast food employers in particular will need to retain sufficient documentation to demonstrate compliance, such as: (1) schedules; (2) dates schedules were posted; (3) notices for additional shifts and when those notices were posted; and (4) documentation demonstrating that employees requested a schedule change. Additionally, company handbooks should be revised to comply with these laws. This article only touches on a few aspects of the laws, and affected employers are highly encouraged to consult with an attorney to ensure that your establishments will be in compliance.
If you have any questions regarding this article, please contact the authors, Eric Su, at esu@fordharrison.com, Robin Kallor, at rkallor@fordharrison.com, or Jennifer A. Williams, at jwilliams@fordharrison.com, all of whom are members of the firm’s Wage and Hour, Retail and Hospitality practice groups. You may also contact the FordHarrison attorney with whom you usually work.