New York City Passes “Fair Work Week” Legislation

Lev Craig

Last September, we reported on a new Seattle worker scheduling law that was created to address the erratic and unpredictable schedules that often plague retail, restaurant, and fast-food workers. On May 30, 2017, New York City passed similar legislation for fast-food and retail workers when Mayor Bill de Blasio signed into law the “Fair Work Week” legislative package, a group of five bills which create several new requirements for NYC fast-food and retail employers. The Fair Work Week laws were passed to aid the tens of thousands of NYC workers who are, as Mayor de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.”

The Fair Work Week package, which will go into effect on November 26, 2017, aims to ensure more stable and predictable schedules and paychecks for workers by setting restrictions on how and when fast-food and retail employers can schedule employees for work. The city introduced the Fair Work Week initiative last year—as we reported last fall—to address issues related to “flexible scheduling,” a problematic practice which often affects low-wage workers such as fast-food and retail employees. “Flexible scheduling” policies exploit workers by requiring them to be “on call” for work, with no guarantee of actually being assigned hours, or forcing them to accept an employer’s decision to cancel, shorten, or otherwise alter their shift with little or no notice.

The Fair Work Week legislation would end this practice. The legislation mandates that retail employers give employees advance notice of their schedules and prohibits the practice of “on-call” scheduling, whereby employees are required to call their workplace on the day of a scheduled shift to find out whether they will need to come in to work that day. Under the Fair Work Week requirements, retail employers must give employees at least 72 hours’ notice before scheduling or cancelling a shift, provide employees with a written work schedule at least 72 hours before the start of the first shift on the schedule, directly notify employees of any schedule changes, and retain copies of work schedules for the previous three years, which the employer must provide to employees upon their request.

Two of the laws in the Fair Work Week package pertain specifically to fast food workers. The first addresses so-called “clopening” shifts, where an employee is scheduled to work a closing shift one evening, directly followed by an opening shift the next morning. Under the new legislation, a fast food employer cannot require an employee to work two shifts which span two days, but are less than 11 hours apart, without compensating the employee $100 in addition to their regular earned wages.

The second requires that, when a fast food establishment needs additional shift coverage, it offer available shifts to current employees before transferring employees from other locations or hiring new workers. The law describes what an employer’s notice of the available shifts to employees must contain, including a schedule of available shifts, whether the shifts will be recurring, the process by which employees can inform the employer which shifts they want to work, and the employer’s procedure for distributing shifts amongst employees. Under the new legislation, fast food employers must also pay workers a “schedule change premium” of $10 to $75, in addition to their regular wages, as compensation for schedule changes such as cancelling, shortening, rescheduling, or adding shifts.

Other components of the Fair Work Week legislation include provisions giving fast food employees the option to make voluntary contributions to a nonprofit organization through payroll deductions, prohibiting employers from retaliating against employees for exercising their rights under the Fair Work Week laws, and instating notice and record-keeping requirements for covered employers.

While there is still much to be done to ensure fair pay and workplace conditions for New York workers, these new protections, as New York City Council Speaker Melissa Mark-Viverito stated, are a first step towards protecting tens of thousands of workers’ “basic employment rights” and addressing “many of the work-related challenges faced by those trying to make a living in fast food and retail.”

If your employer has violated your rights under federal, state, or city wage-and-hour laws, contact The Harman Firm, LLP.