On May 30, 2017, New York City Mayor Bill de Blasio signed, into law, “Fair Workweek” legislation (collectively, the “new Laws,” the “New York City Fair Workweek Laws,” the “Fair Workweek Laws,” or the “NYCFWWLs”) which, effective November 26, 2017, substantially limits retail employers’ and fast food establishments’ discretion in scheduling work shifts for their employees.
More specifically, these five new Laws (i) ban on-call scheduling for retail workers and require retail employers to give, to their workers, not less than 72 hours’ notice of work schedules (Local Law 99 of 2017), (ii) oblige fast food employers to pay premium wages to their employees if the employees’ work schedules are changed with less than fourteen (14) days’ notice (Local Law 107 of 2017), (iii) prohibit fast food employers from making their employees work consecutive work shifts involving both the closing and opening of the restaurant, also known as ‘clopenings’ (Local Law 100 of 2017), (iv) require fast food employers to offer work shifts to current employees before hiring additional employees (Local Law 106 of 2017), and (v) through November 26, 2019, allow fast food workers to make, by means of payroll deductions, voluntary contributions to not-for-profit organizations (other than unions) of the workers’ choice (Local Law 98 of 2017).
According to the Mayor’s Office’s press release about the enactment of the Fair Workweek Laws, the purposes of the new Laws are “to end abusive scheduling practices in the fast food and retail industries” and to “ensure . . . predictable schedules and predictable paychecks for fast food and retail workers.”
Prohibition Of On-Call Scheduling (Local Law 99 of 2017)
With specified exceptions, Local Law 99 of 2017 (“Local Law 99”) prohibits “retail employer[s]” from scheduling ” ‘on-call shift[s]’ ” for retail employees.” The Fair Workweek Laws define an ” ‘ on-call shift’ ” as “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.”
The NYCFWWLs define a ” ‘retail employer’ ” as any employer which employs 20 or more employees at a business “that is engaged primarily in the sale of consumer goods at one or more stores” within New York City.
Further, with certain exceptions, Local Law 99 prohibits retail employers from (i) canceling any regular shift for a retail employee within 72 hours before the scheduled start of the shift or (ii) requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing.
Premium Wages For Fast Food Workers (Local Law 107 of 2017)
Local Law 107 of 2017 (“Local Law 107”) requires “fast food employer[s]” to provide, to each new “fast food employee,” on or before the employee’s first day of work, (i) a good faith estimate in writing setting forth the number of hours the employee can expect to work per week for duration of his or her employment and the expected dates, times and locations of those hours and (ii) a written work schedule. Fast food employers must provide, to each fast food employee, at least 14 days’ notice of each of that employee’s subsequent work schedules.
With specified exceptions, Local Law 17 requires “fast food employer[s]” to pay, to a “fast food employee,” a premium (i) ranging from $10 (ten dollars) to $20 (twenty dollars) for each change to the employee’s work schedule which the employer makes with less than 14 days’ notice but at least 7 days’ notice to the employee, (ii) varying from $15 (fifteen dollars) to $45 (forty-five dollars) for each change to the employee’s work schedule which the employer makes with less than 7 days’ notice but at least 24 hours’ notice to the employee, and (iii) of $75 (seventy-five dollars) for each of certain changes to the employee’s work schedule which the employer makes with less than 24 hours’ notice to the employee.
The Fair Workweek Laws apply to “fast food employee[s]” working for “fast food employer[s].” The NYCFWWLs define ” ‘fast food employer’ “ as any employer that employs a fast food employee at a “fast food establishment.”
In turn, under the new Laws, ” ‘fast food establishment’ ” means any establishment in the State of New York that has its primary purpose serving food or drink items:
- where patrons order or select items and paid before eating and such items may be consumed on the premises, taken out, or delivered to the customer’s location;
- which offers limited service;
- which is part of a chain; and
- which is one of thirty (30) or more establishments nationally, including: (i) an integrated enterprise which owns or operates thirty (30) or more such establishments in the aggregate nationally; or (ii) an establishment operated pursuant to a franchise where the franchisor and the franchisee(s) of such franchisor own or operate thirty (30) or more such establishments in the aggregate nationally.
Under the Fair Workweek Laws, a ” ‘[f]ast food employee’ ” means any person working at or for a fast food establishment in New York City whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.
The fast food chains covered by the NYCFWWLs include nationwide behemoths such as Burger King, Dunkin’ Donuts, McDonald’s, Starbucks US, and Taco Bell. Also among the fast food chains bound by the new Laws are chains founded and headquartered in New York State, such as Nathan’s Famous and Shake Shack.
Ban On ‘Clopenings’ (Local Law 100 of 2017)
The stated intent of Local Law 100 of 2017 (“Local Law 100”) is to ban ‘clopenings’ for fast food workers: that is, to ban consecutive work shifts in fast food restaurants involving both the opening and the closing of the restaurant.
More precisely, and unless the fast food employee requests or consents in writing to work such hours, Local Law 100 bans fast food employers from requiring fast food employees to work two shifts with fewer than eleven (11) hours between the end of the first shift and the beginning of the second shift when the first shift ends the previous calendar day or spans two calendar days. Regardless of whether the fast food employee requests or consents in writing to work such hours, the fast food employer must pay, to the employee, $100 each time the employee works such shifts.
Fast Food Employers’ Current Workers Get First Dibs On Open Shifts (Local Law 106 of 2017)
Under Local Law 106 of 2017 (“Local Law 106”), before any fast food employer may hire new fast food employees, including hiring through the use of subcontractors, the employer must offer shifts that would otherwise be offered to a new fast food employee (i) to the employer’s current fast food employees employed at all fast food establishments owned by the employer or (ii) as to fast food employers that own at least 50 fast food establishments in New York City, to a subset of such fast food establishments as provided in rules to be issued by the Director of the Office of Labor Standards of the New York City Department of Consumer Affairs.
Fast food employers must offer such shifts to their current fast food employees both (i) by posting a notice for three consecutive calendar days in “a conspicuous and accessible location where notices to employees are customarily posted” and (ii) in writing directly to each employee electronically.
Under Local Law 106, fast food employers need only offer shifts to current employees up until the point at which the employer would be required to pay overtime compensation.
Authorization Of Voluntary Payroll Deductions To Benefit Not-For-Profits (Local Law 98 of 2017)
Local Law 98 of 2017 (“Local Law 98”) requires fast food employers, upon written authorization from any fast food employee, to deduct voluntary contributions from the employee’s paycheck and to remit those contributions to the not-for-profit organization designated by the employee.
A fast food employer need deduct and remit contributions only to not-for-profit organizations which have both (i) registered with the Office of Labor Standards of the New York City Department of Consumer Affairs and (ii) provided to the Office of Labor Standards, among other documents or information, facially valid written authorizations from at least 500 fast food employees, although such authorizations need not be from employees employed by the same fast food employer. Further, the fast food employer need not deduct and remit contributions to labor unions.
Local Law 98 expires on November 26, 2019.
An Emerging Trend
With the enactment of the New York City Fair Workweek Laws, New York City becomes the fifth city to enact laws or ordinances curtailing retail employers’ and/or fast food employers’ discretion in scheduling workers’ shifts. Four of these five localities have passed these bans within the past twelve months.
In November 2014, the City of San Francisco passed two ordinances which, effective October 2015, regulate hours, retention, scheduling, and treatment of part-time employees at retail establishments. In September 2016, the City of Seattle enacted “Secure Scheduling” legislation which, effective July 1, 2017, limits retail employers’ and fast food employers’ discretion in setting workers’ shifts. In November 2016, the City of San Jose passed an ordinance which, effective March 2017, requires all businesses with 36 or more employees to offer additional work hours to existing part-time employees before hiring new staff. Also in November 2016, the City of Emeryville, California enacted a “Fair Workweek” Ordinance which, effective July 1, 2017, requires retail employers and fast-food employers to provide workers with advance notice about changes in work schedules.
Take-Aways For Employers
By the New York City Fair Workweek Laws’ effective date, retail employers and fast food employers in New York City must review and revise, to conform to the new Laws, their policies and procedures for scheduling workers’ shifts. By way of example, by November 26, 2017:
- Retail businesses must, with specified exceptions, cease scheduling on-call shifts for retail employees;
- Fast food employers must stop scheduling consecutive work shifts in fast food restaurants involving both the opening and the closing of the restaurant; and
- So as to provide notice of open shifts, fast food employers must be prepared to communicate electronically with all their current fast food workers.
Further, retail employers and fast food employers in New York City should train supervisors and managers concerning the employer’s legal obligations, under the Fair Workweek Laws, in setting work schedules.