New York City’s Predictable-Scheduling Law

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.



New York City’s Fair Workweek Laws Fast-Food Employees:

“Under the Fair Workweek Law, fast food employees have the right to:

1. 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.
2. 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.
3. 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.
4. 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)

New York City’s Fair Workweek Laws Fast-Food Employees:

“Under the Fair Workweek Law, retail employees have the right to:

1. 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.
2. 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.
3. 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.
4. 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. 

Predictable Scheduling Fast-Food Posting

Predictable Scheduling Retail Posting

Fast Food Deductions

Fair Workweek: Fast Food

Fair Workweek: Retail, Deductions
FAQs

Employee Complaint Forms: Fair Workweek: Fast FoodFair Workweek: Retail, Deductions

New York State Definitions for Fast-Food & Retail Establishments:

“WHAT IS A FAST FOOD ESTABLISHMENT?
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 DEFINITION:
“”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.

States with Statewide Laws

• Oregon: Only state with a broad law for large retail/hospitality/food service (500+ employees), requiring 7 days’ notice and predictability pay. 

Key Cities with Local Laws (Examples)

• New York City: Retail/Fast Food: 14-day notice, predictability pay for changes, right to decline shifts.
• Chicago: Retail/Food Service/Hotels/Manufacturing/Warehouse: 14-day notice, predictability pay.
• Seattle: Retail/Food Service: 14-day notice, predictability pay.
• Los Angeles: Some sectors: Notice, predictability pay.
• San Francisco: Advance notice (2 weeks), predictability pay. 

https://www.paycom.com/resources/blog/predictive-scheduling-laws/
https://www.hrdive.com/news/a-running-list-of-states-and-localities-with-predictive-scheduling-mandates/540835/

Additional State and Local Information on Predictive Scheduling (HR Dive)

ARKANSAS
State-wide

Effective Date: March 24, 2017
Employers Affected: None
Local governments may not create or adopt employer requirements outside state or federal requirements.
View the law

CALIFORNIA
San Francisco

Effective Date: July 3, 2015
Employers Affected: “Formula Retail Use” employers in San Francisco with at least 40 retail sales establishments worldwide. Includes bars, restaurants, liquor stores, sales and service providers (including banks and other financial institutions) and take-out food shops. More information on a Formula Retail Use employer can be found here.
The Formula Retail Employee Rights Ordinances (FRERO) regulate hours, notice of work schedules and predictability pay for schedule changes and on-call shifts. Employers must provide schedules two weeks in advance and provide a “good faith written estimate” of the expected number of scheduled shifts per month and the days and hours of those shifts when an employee starts working.
View the law

Emeryville

Effective Date: Jan. 1, 2018
Employers Affected: Retail employers with 56 or more employees globally or fast food companies with 56 or more employees globally and 20 or more employees in Emeryville.
Affected employers in Emeryville must give a “good faith estimate” of an employee’s work schedule. Schedules should be given at least 14 days in advance or an employer must pay Predictability Pay in a calculation which can be seen in the final regulations linked below. Employees also get paid time-and-a-half if scheduled with two shifts within 11 hours of each other for every hour within that 11-hour window.
View the law

GEORGIA
State-wide
Effective Date: July 1, 2017
Employers Affected: None
Local governments may not create or adopt minimum wage laws or laws that require “additional pay to employees based on schedule changes.”
View the law

ILLINOIS
Chicago

Effective Date: July 1, 2020
Employers Affected: Businesses with 100 or more employees, nonprofits with more than 250 employees, restaurants with at least 30 locations and 250 employees globally. To be eligible, employees must earn less than or equal to $26.00 per hour or earn less than or equal to $50,000 per year as a salaried employee.

The Chicago Fair Workweek Ordinance includes building services, healthcare providers, hotels and manufacturers, as well as the standard retail and food service occupations. Employers must give 10 days’ notice of workers’ schedules; that window will rise to 14 days on July 1, 2022. Employers that make alterations to schedules after that 10-day deadline without mutual agreement to the change must pay one hour of Predictability Pay (one hour of the employee’s regular rate) for each adjusted shift. Employees have the right to decline shifts that start less than 10 hours after the end of the previous shift. Employees that do work shifts that begin less than 10 hours after the end of the previous shift must be paid at a rate of 1.25 times their regular rate of pay. This ordinance, due to its scope, also has a number of exceptions, which can be viewed in the law linked below.
View the law

IOWA
State-wide

Effective Date: March 30, 2017
Employers Affected: None
Local governments may not create or adopt regulations “relating to employment matters.”
View the law

OREGON
State-wide

Effective Date: Aug. 8, 2017
Employers Affected: Employers in the retail, hospitality and food service industries that have at least 500 employees.

Currently, employers must provide written work schedules at least seven days in advance, provide a good faith estimate of hours upon hiring and give workers a rest period of at least 10 hours between two shifts or else pay a time-and-a-half rate if the employee opts to work that shift. By July 2020, employers must provide work schedules 14 days in advance.
View the law

Related Stories

Oregon becomes first state to require predictive scheduling

PENNSYLVANIA
Philadelphia

Effective Date: April 1, 2020
Employers Affected: Employers in the retail, hospitality and food service industries that have at least 250 employees and 30 locations worldwide.
Employers must provide a good faith estimate of a new employee’s work schedule, though this requirement will not be in effect until July 1, 2020. Notice of schedules must be given 10 days in advance in 2020, and then 14 days in advance starting Jan. 1, 2021. Employers that change the schedule after the advance notice period must pay the affected employees one hour of predictability pay. Employees are also entitled to a rest period of at least 9 hours between two shifts or pay $40 to the worker for each shift worked within such a period.
View the law

TENNESSEE
State-wide

Effective Date: April 19, 2017
Employers Affected: None
Local governments are not allowed to adopt or enforce any regulations that impose “a requirement upon an employer pertaining to employee scheduling.”
View the law

WASHINGTON
Seattle

Effective Date: July 1, 2017
Employers Affected: Retail and food service establishments with 500 or more employees worldwide and restaurants with 500 or more employees and 40 or more locations worldwide.
Employers must provide a good faith estimate of hours an employee can expect upon hire, cannot schedule shifts separated by less than 10 hours unless an employee consents to work such hours at a time-and-a-half rate, and must provide work schedules 14 days in advance or pay workers at least an extra hour at the standard rate.
View the ordinance