As we noted in an earlier post, the election of Donald J. Trump likely means that states and municipalities—and not the federal government—will lead the charge on worker-protection issues for the next four years. In this vein, the New York City Council introduced a series of bills on December 6 aimed at tightening restrictions and penalizing retail and fast food employers for last-minute changes in employee scheduling and offering greater protections for all New York City employees seeking flexibility in their working arrangements.
Retail Employee Scheduling
Int. No. 1387 applies to retail employers, defined as businesses with five or more employees engaged in the sale of consumer goods, including but not limited to appliances, clothing, electronics, groceries, and other household items. The bill would, among other things:
- Ban “on-call hours” or “on-call shifts,” defined as any time a retail employee is required to be available to work and to contact the employer or wait to be contacted by the employer to determine whether the employee must report to work;
- Prohibit employers from cancelling scheduled hours of work within 72 hours of the start time of the shift, unless the employee consents in writing;
- Prohibit employers from requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing;
- Prohibit employers from providing a retail employee with less than 20 hours of work during any 14-day period (offset by any hours an employee elects to take as paid or unpaid leave during that 14-day period); and
- Require employers to post a physical copy of the work schedule of all employees at that work location at least 72 hours prior to the beginning of the scheduled hours of work, and to directly notify affected employees as soon as practicable if changes are made to the schedule.
The bill would not prevent a retail employer from allowing employees, on short notice, to request time off or to swap shifts upon mutual agreement. Employees under a collective bargaining agreement would not be covered by the law, so long as: (i) the provisions of the law are expressly waived; and (ii) the agreement provides for a “comparable or superior benefit” for covered employees.
A separate bill—Int. No. 1396, discussed below—would create a new “fair work week” section of the City Administrative Code covering retail employees, including a complaint mechanism with penalties to be administered by the Department of Consumer Affairs.
Fast Food Employee Scheduling
The second set of bills addresses scheduling for fast food employees, defined as non-salaried employees in fast food establishments whose duties include customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.
“Fast food establishments” are those that (i) have as their primary purpose serving food or drink items; (ii) where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out or delivered to the customer’s location; (iii) offer limited service; (iv) are part of a chain; and (v) are one of 30 or more establishments nationally, including franchises.
- Int. No. 1388 would require a minimum of 11 hours between the end of one shift and the start of another, absent a request by, or written consent of, the employee. The bill would also require fast food employers to pay an employee who works such a shift $100 per instance.
- Int. No. 1395 would require fast food employers to offer additional work shifts in a given location first to current employees at that location before hiring additional employees or subcontractors (including through temporary service or staffing agencies). The bill would also require fast food employers to post notice of shifts being offered and “make reasonable efforts” to offer employees “training opportunities to gain the skills and experience to perform work for which the employer typically has additional needs.”
- Int. No. 1396 would, among other things, require fast food employers to provide employees with a “good faith estimate” of their work schedule upon hire and, going forward, provide employees with a written work schedule covering a period of no less than seven days by no later than 14 days before the start of the schedule. The bill would further require employers to pay premiums of $15 to $45 per shift for schedule changes made on less than 14 days’ notice, and a $75 per shift premium if hours are reduced or cancelled less than 24 hours’ before the start of the shift. As noted above, the bill would also create a new “fair work week” section of the City Administrative Code that includes a complaint mechanism for fast food employees via the Department of Consumer Affairs.
Also introduced was Int. No. 1384, which would allow fast food employees to authorize voluntary contributions to covered not-for-profit organizations to be deducted from the employee’s paycheck and remitted to the organization by the fast food employer. Contributions would be required to be remitted to the organization(s) by no later than 15 days following the deduction.
Flexible Work Arrangements
Int. No. 1399 would prohibit all employers—including, but not limited to, retail and fast food employers—from retaliating against an employee for requesting a “flexible work arrangement” (defined as including such things as schedule modifications, additional shifts or hours, limitations on availability, working at a different location or from home, or job sharing). The bill would require employers to engage in an “interactive process” regarding flexible work arrangement requests at least once each calendar quarter if requested by an employee, and would require a good faith response to an employee’s request within 14 days.
The bill also would create a “right” for employees to receive a temporary change to work arrangements in the event of (i) a caregiving emergency involving a covered family member or a personal health emergency (if the employee has not yet accrued paid sick leave, has exhausted all sick leave or sick leave does not otherwise apply to the situation) or (ii) the employee or a family member having been the victim of a family offense matter (as defined in the bill), a sexual offense or stalking. Such changes would be required to be provided up to four times a year and for one business day per request.
Int. 1399 would also require employers to provide each employee expected to work hours on a set schedule with a copy of that schedule in writing upon hire, including the number of hours, times and locations that the employee is expected to work.
If passed, each of the bills would take effect 180 days following adoption. We will continue to monitor these pending bills and report on any further developments.