On February 18, 2020, “State Trial Judge Arthur Engoron dismissed a lawsuit, finding that the city’s scheduling regulation isn’t pre-empted by state law. Covered employers in the Big Apple, therefore, must continue to ensure that their policies and practices align with employee-scheduling rules outlined in the 2017 Fair Workweek Law.” (SHRM) What this means in NYC? Fast-Food and retail employers throughout New York City must comply with both the city’s predictable-scheduling law and New York State’s wage and hour laws. Don’t forget the Fair Labor Standards Act (FLSA) at the federal level. The original NYC laws were passed in late 2017.
“Under the Fair Workweek Law, fast food employees have the right to:
- Good Faith Estimate of Schedule:
On or before workers’ first day of work, employers must provide written schedules for the first two weeks of work with hours, dates, start and end times of shifts and written “Good Faith Estimates” (days, times, hours, locations you can expect to work during your employment). Employers must provide an updated estimate if the estimate changes.
- Advanced Notice of Work Schedules:
Employers must give workers their written work schedule at least 14 days before their first shift in the schedule. Schedules must include at least seven calendar days with dates, shift start and end times, and location(s) of all shifts. If the schedule changes, employers must contact all affected workers within 24 hours, or as soon as possible.
- Priority to Work Newly Available Shifts:
Before hiring a new employee when new shifts become available, employers must advertise shifts to existing workers in NYC first by: 1) posting information at the worksite where the shifts have become available and by directly providing the information to workers electronically, which may include via text or email; 2) giving priority to work open shifts to workers at the worksite where shifts are available; 3) giving shifts to interested workers from other worksites only when no or not enough workers from the worksite accept. Employers can only hire new workers if no current NYC workers accept the shifts by the posted deadline.
- Consent Plus $100 for “Clopening” Shifts:
Employers cannot schedule workers to work two shifts over two days when the first shift ends a day and when there are less than 11 hours between shifts (a “clopening”) UNLESS workers consent in writing AND are paid a $100 premium to work the shift.” (NYC.gov)
“Under the Fair Workweek Law, retail employees have the right to:
- 72 Hours’ Advance Notice of Work Schedule:
Employers must give workers their written work schedule at least 72 hours before the start of the schedule in the way the employer usually contacts workers, which may include via text and email. They must post the schedule at the workplace where all workers can see it. This schedule must include dates, shift start and end times, and location(s) of all shifts in the work schedule. If the schedule is changed, employers must update and repost the schedule and contact all affected workers.
- No On-call Shifts:
Employers cannot require workers to be ready and available to work at any time the employer demands, regardless of whether workers actually work or report to work; or to “check in” within 72 hours of a scheduled shift to find out if they should report for the shift.
- No Shift Additions with Less than 72 Hours’ Notice:
If employers want to add time or shifts to your schedule less than 72 hours before the change, workers have the right to accept or decline the change. If workers accept an additional shift, they must do so in writing.
- No Shift Cancellations with Less than 72 Hours’ Notice:
Employers cannot cancel a shift less than 72 hours before the start of the shift except under the following circumstances: threats to worker safety or employer property, public utility failure, shutdown of public transportation, fire, flood, or other natural disaster, or a government-declared state of emergency. However, workers may trade shifts voluntarily.” (NYC.gov)
The legislation also contains fast-food employee’s right to voluntary deductions and contributions to a nonprofit, revoking authorization and receiving information about the nonprofit.
New York State Definitions for Fast-Food & Retail Establishments:
A fast food establishment is any business that meets the following criteria:
- Primarily serves food or drinks, including coffee shops, juice bars, donut shops, and ice cream parlors
- Offers limited service, where customers order and pay before eating, including restaurants with tables but without full table service, and places that only provide take-out service
- Is part of a chain of 30 or more locations, including individually owned establishments associated with a brand that has 30 or more locations nationally
Examples of fast food establishments include Ben & Jerry’s, Chipotle, Dunkin Donuts, Golden Krust Caribbean Bakery and Grill, Jamba Juice, KFC, McDonald’s, Nathan’s Famous, Pizza Hut, Quiznos, Shake Shack, Starbucks, Subway, Taco Bell, Tim Hortons, Uno Pizzeria & Grill, Wendy’s, and White Castle.” (NY DOL Website)
“”Retail store” shall mean a store that sells stock-keeping units directly to consumers and charges or is liable for the collection of sales taxes. For the purposes of this section the term “retail store” shall include those stores that use Universal Product Code (UPC) scanners or price-look-up (PLU) codes in checkout systems or use manual pricing of items.” (NYS Senate Website)
What impact does this have on the “Remainder of New York State,” as defined by Albany? There are no current impacts on retail or fast-food establishments throughout the remainder of the state. However, I say “current impacts.” As California and New York City pass laws, there is at times a domino impact throughout the remainder of the state. Continue to watch for any changes in NYC and/or California related to these laws and any other labor and employment laws. If you have locations in NYC, I am happy to answer any questions on these laws.
New York Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act”):
“Goes into effect on March 21, 2020. The SHIELD Act, which amends the State’s current data breach notification law, imposes more expansive data security and data breach notification requirements on companies, in the hope of ensuring better protection for New York residents from data breaches of their private information. In anticipation of the SHIELD Act’s effective date, over the next several months we will highlight various aspects of the new law, and how to prepare. Under the Act, individuals and businesses who collect computerized data including private information about New York residents must implement and maintain reasonable administrative, physical and technical safeguards. The Act provides several safeguards which may be implemented to ensure compliance.” (SHRM)