New York City is implementing new rules that will affect the predictability of workers’ schedules in retail stores and fast food restaurants, becoming the largest city to implement such legislation. These new rules are reflected in a collection of local laws dubbed the “Fair Workweek” legislation (including Int. No. 1387-2016 – applicable only to retail establishments; Int. No. 1388-2016 and Int. No. 1395-2016 – applicable to fast food establishments, and Int. No. 1396-2016 – providing definitions.) Similar legislation has been implemented in municipalities like San Francisco and Seattle.
The New York City predictive scheduling law went into effect on November 26, 2017. Enforcement of then new rules will be under the jurisdiction of the Office of Labor Policy and Standards (OLPS), which is housed under the City’s Department of Consumer Affairs (DCA).
Under the new laws, retail employers with 20 or more employees will be generally required to:
· Provide employees with a written work schedule at least 72 hours in advance of the first shift on the schedule; unless employee consents in writing;
· Give employees at least 72 hours’ notice before cancelling a shift;
· Directly notify employees of any schedule changes (employees cannot be expected to come in or call in just to check for changes).
· Keep records of work schedules for the previous three years and provide them upon request.
Fast food establishments that are part of a chain (30 or more stores nationally, whether franchised or not) are subject to different rules. Generally, they must do the following:
· Provide new employees with written, good faith estimates of their schedule, including dates, times, and locations, for the duration of their employment.
· Provide at least 14 days advance notice to employees with an estimate of at least a week’s worth of scheduling.
· Pay a “schedule change premium” of $10 to $75 if schedule changes are made on short notice; the greater the notice, the lesser the premium.
· Pay employees an extra $100 for “clopening” shifts (a closing shift followed by an opening shift) that are less than 11 hours apart.
· When looking to fill additional shifts, offer the work to current employees before transferring employees from other locations or hiring new workers.
As New York City rules take effect, New York State has proposed similar regulations would affect any employer that is covered under the Minimum Wage Order for the Miscellaneous Industries and Occupations.
At the end of November, the New York State Department of Labor (DOL) proposed changes that would impact employee scheduling for the retail, financial services, health-care, and construction industries.
According to the state DOL, the proposed regulations would, among other things:
· Establish a 14-day advance notice standard for scheduling of workers and provide two hours’ extra pay for last-minute assignments.
· Expand existing reporting pay for workers of at least four hours to now include last-minute cancellations and assignments and on-call shifts requiring workers to be on stand-by to come into work.
· Provide flexibility to employers by allowing new shifts to be offered without a premium during the first two weeks of a worker’s employment, permitting worker shift swaps and substitutions without penalty and allowing for weather related cancellations without penalty with 24-hours’ notice.
· Impose no blanket prohibitions or mandates. Employers would retain control over their scheduling practices and those who provide predictive scheduling will see no additional compliance costs.
If these regulations are approved, this would make New York the second state in the country to implement state-wide predictive scheduling rules, following new predictive scheduling legislation being implemented in Oregon. More states are anticipated to consider this type of legislation.