New York City Fast-Food and Retail Employers Must Note New Scheduling Laws

New York City employers in the fast-food and retail industries will soon have to comply with new employee-scheduling laws related to breaks between shifts, predictable hours, on-call scheduling and more. The New York City Council and Mayor Bill de Blasio approved five such laws that will take effect on Nov. 26.

Employers in these industries should check to see if they fall within the "retail" and "fast food" definitions under the new laws, said Aaron Warshaw, an attorney with Ogletree Deakins in New York City, noting that there is a narrow exception for small employers. Affected employers must start looking at their scheduling, hiring and other processes now to make sure they are compliant with the new requirements, he said.

"If the organization has a national scope, HR should ensure knowledge of all related laws to see if a national approach can be configured," said Richard Greenberg, an attorney with Jackson Lewis in New York City. He said HR professionals must take steps to obtain full knowledge of the business's operational practices with regard to scheduling. 

Specifically in New York, employers must monitor any potential developments at the state level, because such laws could pre-empt any related obligations under New York City law.

[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]

Summary of New Laws

The bundle of five new workplace laws includes four for the fast-food industry and one for retail establishments as follows:

• Voluntary paycheck deductions. Int. No. 1384 allows fast-food employees to designate part of their salary to a not-for-profit organization of their choosing. When workers opt to do this, employers must deduct those contributions from paychecks and provide the funds to the applicable organization.
  
• Rest between shifts. Int. No. 1388 establishes a minimum time between shifts and prohibits fast-food employers from scheduling so-called clopenings—where an employee works the closing shift one night and must work the opening shift the next day. The law will prohibit such consecutive work shifts unless there are at least 11 hours between them. Employees may consent to work clopenings, but they must be paid an extra $100 each time.
  
• Extra hours. Int. No. 1395 directs fast-food employers to offer additional hours to existing part-time staff before hiring new workers. Under the new law, employers must post notices at the worksite and send notices electronically to employees when new shifts become available. "Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first," according to the bill's summary.
  
• Predictable scheduling. Int. No. 1396 will require fast-food employers to provide new hires with an estimate of their work schedule at the start of their employment and to give existing staff their schedules 14 days in advance. If employees receive schedule changes with less than 14 days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.
  
• On-call scheduling. Int. No. 1387-A prohibits certain retail businesses from requiring workers to be on call—meaning that workers must be available for certain shifts but must either contact the business or wait to be contacted about whether they should report to work. Under the new law, retail employers can't cancel, change or add shifts within 72 hours of a shift's start time—except in certain emergency situations. Employers must post the schedule 72 hours in advance. If requested, the employer must provide a written copy of an employee's work schedule for any week worked during the past three years and provide the most current version of the work schedule for all retail employees at the specific work location. However, employers may still approve workers' requests to switch shifts or take time off. There is also an exception for workers who are covered by a collective bargaining agreement.
  

Key Takeaways

"Employers in retail or fast food must immediately determine their obligations under the laws, review practices and train managers," Greenberg said.

Warshaw noted that the new laws stem from the "fight for $15" movement that has aimed to raise the minimum wage and add legal protections for low-wage earners.

"These efforts are intended to improve the working conditions of people in New York City and particularly those working in the fast-food and retail markets," he added.

He said he expects these laws to continue popping up in other cities and states.

California legislatures introduced a scheduling bill this year, but the measure has been put on hold for now.

Scheduling laws already exist in other jurisdictions, such as San Francisco and Seattle, and the trend is likely to continue, Greenberg noted. 

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