On May 30, 2017, New York City Mayor Bill de Blasio signed a bill package into law that will impose new restrictions on retail and fast food employers with regard to employee scheduling, hiring, and pay practices. The laws take effect on November 26, 2017.
The “Fair Workweek” bills address issues including more predictable working schedules, minimum hours, training opportunities, and more. The enacted package includes five bills, highlights of which include the following:
Int. No. 1387 bans “on-call” scheduling for retail employees, prohibiting retail employers from requiring employees to be available to work and wait to be contacted to find out if they must report to work without guarantee of a shift. The bill further prohibits retail employers from cancelling a shift on fewer than 72 hours’ notice or requiring an employee to work on fewer than 72 hours’ notice, unless the employee consents to the shift in writing. Retail employers will also be required to provide employees with a written work schedule no later than 72 hours before the first shift on the schedule and post a physical copy of the schedule at least 72 hours prior to the beginning of the scheduled shifts. Of note, the bill exempts retail employees covered by a valid collectively bargaining agreement—including one open for negotiation—that addresses scheduling so long as the provisions of the bill are expressly waived in the CBA.
Fast Food Employees
Int. No. 1388 prohibits consecutive work shifts for fast food employees by imposing a minimum time between shifts. Under the bill, absent a request or consent from an employee, the employee must be provided with a minimum of 11 hours between the end of one shift and the start of another. The bill also requires that employees be paid $100 for each instance that they work a consecutive shift as defined above.
Int. No. 1395 addresses fast-food employee hiring. The bill requires fast-food employers to first offer additional shifts to current employees at the location where additional shifts are to be worked before hiring additional employees (including temporary or contracted workers hired through staffing agencies) or transferring current employees from other locations. The bill includes notice posting requirements when new shifts become available, as well as a requirement that employers provide the notice to each employee electronically. Fast-food employers must also make “reasonable efforts” to offer employees “training opportunities” to gain the skills for which the employer typically has additional needs.
Int. No. 1396, among other things, requires fast-food employers to provide new employees upon hire with a “good faith estimate” of the expected work schedule (including hours per week, dates, time, and locations). The bill also requires fast food employers to provide employees with written notice of changes in work schedules at least 14 days before the start of any new schedule, both by posting the schedule and by electronic means to each employee. Fast food employers providing less than 14 days’ notice of schedule changes will be required to pay employees “schedule change premiums” ranging from $10 to $75 for each such change.
Int. No. 1384 permits fast-food employers to deduct voluntary contributions to covered not-for-profit organizations from employees’ paychecks, upon written authorization from the employee. The bill requires fast food employers to remit any deducted funds to the designated organization no later than 15 days after the deduction is made. The bill also creates mechanisms for investigations by the newly created Office of Labor Standards into complaints or suspected violations, as well as a private right of action and penalties including punitive damages.
Enforcement and Penalties
Int. No. 1396, discussed above, also creates new recordkeeping requirements, as well as complaint mechanisms and administrative remedies, for both retail and fast-food employer non-compliance with the various new provisions. The bill also creates a private right of action and penalties (including employees’ rights to recover attorneys’ fees) for violations of the new provisions.
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Finally, in our previous post upon the introduction of the above bills, we discussed a sixth bill (Int. No. 1399) that 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, working at a different location or from home, or job sharing) and require temporary work arrangement changes in certain designated situations. Int. No. 1399 was not adopted as part of the “Fair Workweek” package and presently remains under consideration in the NYC Council Committee on Civil Service and Labor.