Effective 11-26-17, Mayor Ds Blasio has signed into law the New York City Workplace Fairness package of legislation that includes five laws and is directed at both the fast food and retail sectors.
This LAWlert focuses on the portion of the laws applicable to the fast food industry. We will issue a second LAWlert that concentrates on the retail segment.
The law defines “fast food establishment” as:
Whose primary purpose is to serve food or drink,
Where patrons pay in advance of eating and where they eat on premises, can take out or have their food delivered,
Offers limited service,
Is part of a chain, and
One of 30 or more in total nationally; or
The establishment is operated as a franchisee and together with the franchisor has a total of 30 or more locations.
The law pays particular attention to how employees are scheduled to work hours and or shifts. An applicant for employment must be presented with a written estimate of the number of hours per week they are going to work for the duration of employment. This must include:
Expected dates, times and locations of work, and
Long term changes must be in writing and be updated in the estimate as soon as possible.
The rules as they pertain to the “actual schedule” are as follows:
The initial actual schedule must be for a minimum of seven days and subsequent schedules must account for at least 14 days.
The schedule must be posted somewhere conspicuous and provided to each employee in writing and with email if regularly used.
Any change must be provided in written notice within 24 hours.
Upon request of an employee, the employer must provide up to three years of past schedules for the requesting employee and the most current schedule for all other employees at the same location.
Employer must obtain written consent of employee in order to have that individual work hours and or shifts not on the schedule.
Violations of the Workplace Fairness legislation will result in premium payments by the employer to the employee. Those premiums are as follows:
$10.00 for each change where at least 7 days’ notice but no less than 14 days where:
Additional hours or shifts are added to the schedule; or
Date(s) or start or end time(s) of a regular shift or on-call shift is changed with no loss of hours.
$20.00 for each change where at least 7 days’ notice but no loess than 14 days where:
Hours have been subtracted from regular or on-call shifts; or
Regular or on-call shifts have been cancelled.
$15.00 for each change where less than 7 days’ notice has been provided where:
Additional hours or shifts have been made to the schedule; or
Date or start or end times of a regular shift or on-call shift is changed with no loss of hours.
$45.00 for each change where less than 7 days but at least 24 hours’ notice was given where:
Hours were subtracted from regular or on-call shift; or
Regular or on-call shift was cancelled.
$75.00 for each change where less than 24 hours’ notice was provided where:
Hours have been subtracted from regular or on-call shift; or
Regular or on-call shift was cancelled.
These premiums must be paid to the employee on the next scheduled day, except where operations can’t start because:
Threats to employee or employer property,
Utility failure or shutdown of public transportation,
Flood, fire or natural disaster,
A state of emergency publicly declared, or
Severe weather poses a threat to employee safety
If the affected employee requested the change no premium pay applies. The same holds true if two employees voluntarily decide to swap shifts.
Interestingly, despite the premiums for adding shifts or hours, another piece of the Workplace Fairness legislation package, an employer will be subject to a premium payment if they do not offer current employees regular or on-call shifts rather than hiring new employees. This applies regardless of whether the need is in the same location or elsewhere within the fast food chain of operations. The employer must post a notice when these opportunities arise and the notice must include the following:
Number of shifts,
Schedule of shifts,
If the shifts will occur at the same time each week,
The length of time the employer anticipates the need for such coverage,
Number of employees needed,
The process, date and time by which employees must provide notice to the employer of their desire to work these shifts,
Criteria the employer is using for distribution of the sifts,
Notice that an employee may accept a subset of the shifts but that the shifts will be given based upon the criteria set forth in the notice, and
Although all employees may apply regardless of where they work within the chain, preference will be given to employees at the same location where the need exists.
This notice must be conspicuously posted at least 3 consecutive calendar days and electronically if that is a regular method of communication.
Finally, another law within the Fair Workplace legislation forbids an employer from requiring employees “to work two shifts with fewer than 11 hours between the end of the first and the start of the second,” “where the first shift ends the previous calendar day or spans two calendar days,” unless the employee consents or requests the shifts. The consent or request must be in writing.
It his highly recommended that all affected employers review their handbooks and all other applicable written policies to ensure compliance with these new laws and that all managers be trained in the details.