NYC Fair Workweek
On November 26, 2017, new scheduling requirements will become effective for retail and fast food establishments in New York City. The Fair Workweek legislation aims to ensure predictable paychecks and work schedules for employees. The Fair Workweek Act also includes strict notice and recordkeeping requirements. There are penalties and fines for failing to comply.
All schedules must be posted no later than 72 hours before the first shift on the work schedule. The schedule must be posted in a visible and accessible location for all employees to view. If the schedule is changed after it is posted but before the 72 hours’ notice window then the employer must update the posted schedule and directly notify all employees of the change. The employer must keep a copy of all schedules. With the requirement of advanced scheduling, on-call scheduling is prohibited. A retail employer may not:
• Schedule an employee for any on-call shift;
• Cancel any regular shift within 72 hours’ notice of the scheduled start of shift;
• Require an employee to work with fewer than 72 hours’ notice, unless the employee consents in writing; or
• Require a retail employee to contact the employer to confirm if they should report for a regular shift fewer than 72 hours before the start of the shift
However, a retail employer may:
• Grant an employee time off pursuant to an employee’s request;
• Allow an employee to trade shifts with another employee; and
• Make changes to an employees work schedule with less than 72 hours’ notice, unless certain limited exceptions apply
Fast Food Employers
The following requirements for fast food employers are:
• Employers are prohibited from scheduling employees a ‘clopening’ shift without additional compensation. ‘Clopening’ is defined as working a closing shift then working an opening shift the next day.
◦ Employees must have at least 11 hours between the end of the first shift and beginning of the second shift when the shift ends the previous day or spans two days
◦ However, the employer may schedule the employee to work a ‘clopening’ shift if they compensate the employee an additional $100 above and beyond earned wages, or if the employee requests the shift in writing
• Employers must offer regular or on-call shifts to current employees prior to transferring employees from another location or hiring new employees
• When the shifts become available, a detailed notice of the shift must be posted three consecutive calendar days in a visible and accessible location. If no employee at the location accepts the shift within specified timeframes, the employer may distribute the additional shifts to employees from other locations or hire additional employees as needed.
Schedule Change Premium: this is a requirement of money owed to an employee who has their schedule changed. This includes, adding or canceling shifts, adding hours or shortening shifts, moving shifts to another date and time (including on-call shifts), and not requiring employees to report to work during on-call shifts. The premium pay is not wages earned but rather is in addition to wages. The schedule change payments can range from $10 to $75 for each change depending on the specific circumstances. If payments are owed then they must be paid at the time the employer pays an employee’s wages for work performed in that workweek.
Contributions to Nonprofits
The part of the bill provides fast food employees the ability to make voluntary contributions to a nonprofit organization through payroll deductions. The employer must receive a registration letter form the nonprofit and written authorization from the employee.
Notice and Recordkeeping Requirements
Employers are required to post a notice of employee rights under the laws in an area accessible to employees at any workplace or job site where any employee works. The notice must be posted in
English and any language spoken as a primary language by at least five percent of employees if the director has made the notice available in that language. The DCA is charged with making available appropriate notices. The law also requires employers to retain records for a period of three years that document compliance with the law. If an employer fails to maintain or retain these records, a presumption arises that the employer has violated the law.
Penalties & and Fines
The DCA will enforce the Fair Workweek legislation. If an employee finds the employer in violation, they may file a complaint with the DCA within two years of the date they knew or should have known of the alleged violation. Penalties may include rescission of employee discipline, reinstatement, back pay, actual and/or statutory damages. These penalties are issued on a per employee and per instance basis.
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This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.