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Don’t Change the Schedule: NYC Fast Food and Retail Employers Must Take Notice

Posted: June 5, 2017

Beginning November 2017, fast food and retail employers in New York City will be forced to think twice before making changes to employees’ schedules. Last week, Mayor Bill de Blasio signed the “Fair Workweek” bills into law, which affect fast food employers’ ability to make changes to schedules, require fast food employers to pay employees a premium for schedule changes, and limit the practice of having retail employees remain “on call” for shifts.

Fast Food Employers

These new laws apply to fast food establishments, which is any establishment (i) that has as its primary purpose serving food or drinks; (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) that offers limited service; (iv) that is part of a chain; and (v) that is one of 30 or more establishments nationally, including (A) an integrated enterprise that owns or operates 30 or more such establishments in the aggregate nationally or (B) an establishment operated pursuant to a franchise where the franchisor and the franchisees of such franchisor own or operate 30 or more such establishments in the aggregate nationally.

According to the new laws, at the time of hire, fast food employers will be required to provide employees an estimate of their work schedule, including number of hours, days, and times. Thereafter, employers will be required to provide a schedule to all employees 14 days in advance. The schedule must be posted in a conspicuous place and sent to each employee. Employers must update these schedules within 24 hours of knowledge of any change (or as soon as practicable), provide an updated copy to affected employees, and post the revised schedule. Employees are also permitted to decline to work any hours not included in the schedules. If the employee agrees to work any hours not previously scheduled, the employer must obtain the employee’s consent in writing prior to the start of the shift.

If the schedule changes with less than 14 days’ notice, employees will receive additional bonus payments on top of their regular compensation. If the shift change is between 14 days and 7 days in advance, the employee is entitled to a $10 to $20 bonus per change. If the shift change occurs between 7 days and 24 hours in advance, the employee is entitled to $15 to $45 bonus per change. If the change occurs less than 24 hours in advance, the employee is entitled to a $75 bonus payment per change. The bonus payments are not required if the employer’s operations cannot proceed due to certain emergency conditions, the employee requested the schedule change in writing, two employees voluntarily traded shifts, or the employer is required to provide overtime pay for the changed shift.

Fast food employers will also be barred from scheduling employees to work “clopening” shifts where the employee closes the restaurant one day and then opens it the next day if there are less than 11 hours in between, unless the employee requests or consents (in writing) to work back-to-back shifts. Employers will also be required to pay employees an additional $100 per “clopening” shift.

Fast food employees are now permitted to devote portions of their paychecks to nonprofit worker advocacy groups of their choice. Upon receipt of an authorization from an employee and a registration letter pertaining to the relevant organization, fast food employers must deduct voluntary contributions from an employee’s paycheck and remit them to the designated organization.

Finally, before hiring new employees, fast food employers must offer available shifts to current employees employed at all of the fast food establishments owned by the employer. When a shift becomes available, employers must post notice of the available shift for three consecutive days in a conspicuous location and in writing directly to each employee electronically.

Retail Employers

Retail businesses with more than 20 employees will now be banned from scheduling employees for “on call” shifts. An “on call” shift is any time period other than an employee’s regular shift when the employer requires the employee to be available to work, regardless of whether the employee actually works and regardless of whether the employer requires the employee to report to a work location.

Additionally, employers will be prohibited from canceling any regular shift within 72 hours of the scheduled start of the shift or from requiring an employee to work with fewer than 72 hours’ notice, unless the employee consents in writing. Retailers will be required to post employees’ schedules at least three days before the beginning of the scheduled work hours.

Employees will, however, be permitted to trade shifts. Employers may make changes to schedules with less than 72 hours’ notice if the employers’ operations cannot begin or continue due to: (a) threats to the retail employees or retail employer’s property; (b) the failure of public utilities or the shutdown of public transportation; (c) a fire, flood, or other natural disaster; or (d) a state of emergency.

Next Steps

Fast food and retail employers should take this time to examine current scheduling policies and procedures. Before the effective date, the Office of Labor Standards will make available notices for employers to post. Employers must also retain all records (including all schedules) documenting their compliance with these laws for three years.