New York City enacted a package of “Fair Workweek” laws (the “Laws”) designed to ensure that fast food and retail workers are given predictable schedules and paychecks. According to Mayor Bill de Blasio, workers in these industries have been subjected to unfair and inconsistent scheduling practices, leaving the employees with a lack of clarity of when they will work and how much they will earn. The Laws are intended to stop these scheduling practices and hold employers accountable for violations. The Laws will be effective on November 26, 2017.
A summary of the Laws as they apply to the fast food industry is set forth below:
- certain fast food employers will be required to provide employees with an estimate of their work schedule upon hire and a work schedule 14 days in advance of their shifts. If the employer makes schedule changes with less than 14 days’ notice to the employee, the employer will be required to pay a premium, with a greater premium to be paid as the start of the first shift approaches. Schedule changes include canceling, shortening, or moving shifts, adding additional hours to scheduled shifts, and adding shifts.
- “clopenings” for fast food employees will be banned, so that employees cannot be required to work back-to-back shifts by closing the establishment on the first shift and opening it on second shift the next day, with fewer than 11 hours in between. An employer who requires an employee to work a “clopening” shift will need to pay the employee $100.
- fast food employers with available hours will need to offer shifts to existing employees before hiring new employees. Hours would only need to be offered to current employees up to the earlier of the point when the employer would be required to pay overtime, or until all current employees have rejected available hours. When the employer has exhausted these options of offering shifts to current workers, it may hire additional part-time workers.
- fast food employees must be permitted to designate part of their salary to a not-for-profit of their choice and require employers to deduct and remit the donation to the not-for-profit.
As for retail employees, the Laws will enact the following changes:
- ban the practice of “on-call” scheduling, which is when an employer requires an employee to be available to work, contact the employer or wait to be contacted by the employer, to determine whether the employee must report to work.
- with limited exceptions, retail employers will be prohibited from cancelling, changing or adding work shifts within 72 hours of the start of the shift.
- retail employers will be required to post the employees’ schedule 72 hours before the beginning of the scheduled hours of work, provide (upon request by a retail employee) a written copy of the employee’s work schedule for any week worked within the prior three years, or provide (upon request by a retail employee at the work location) the most current version of the work schedule for all retail employees at the location.
To prepare for compliance with the Laws, fast food and retail employers should begin to modify their scheduling procedures, and train all managers and others involved in setting schedules of the new requirements.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice. If you have any questions regarding these issues, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.