New York Enacts Restrictive Scheduling Ordinances on Fast Food Business Part One

Fair Workplace Ordinances Designed to Regulate Scheduling

May 2017, saw a flurry of bills in New York City, all of whom were designed to restrict the rights of employers to schedule their staff. Together the five bills are called the “Fair Workplace” and they were signed into law by Mayor de Blasio on May 30, 2017.

Businesses have until November 26, 2017 to be prepared for the bills or to face more stiff penalties from New York City. Employers who are looking for ways to become compliant can contact SwipeClock or fill out the form at the bottom of this article.

Together these bill prohibit businesses from having on call employees, penalize employers for changes to schedules done within 14 days of the date to be worked, prohibit clopenings and more.

Overview of the New Predictive Scheduling Laws

The new laws regulate and impose scheduling restrictions on fast food restaurants and retail locations. This is similar to the Emeryville and San Francisco restrictions, but varies from the new Oregon Law. One key is that employers are not allowed to make any sudden changes to employees schedules, but must give at least 72 hours notice.

  1. Employers must provide no less than 72 hours notice to employees of their schedules
  2. Pay premium wages if the work schedules are changed with less than 14 days notice
  3. Prevent employers from scheduling employees for consecutive closing and opening shifts
  4. Require employers to offer additional work to existing employees before hiring new employees
  5. Allow fast food workers to make deductions from their paychecks voluntary contributions to nonprofits of the worker’s choice.

Covered Employers Under the Fair Workplace Laws

Fast Food and Retail employers are specifically covered under the new laws. NYC defines a Fast Food Establishment as any business that meets the following five criteria.

First, its primary purpose is service drink or food items.

Second, patrons select items and pay for them before eating and may consume them on the premises, taken out, or delivered.

Third they offer limited services.

Fourth part of a chain with similar decoration, color schemes, decorations, packaging, etc.

Fifth, is one of 30 or more establishments in the aggregate nationally. These requirements are the same requirements that the State’s Fast Food Minimum Wage applies to.

  • Primary purpose is to sell food or drink
  • Customers pay for food before it’s consumed
  • Can take out food, have it delivered, or eaten on location
  • Limited services offered
  • Part of a chain
  • One of at least 30 establishments nationally

Retail employers are considered any employer who has at least 20 employees or more whose primary duties include the sale of consumer goods at a store in the city. Consumer goods are defined as any product for personal, household, or family purposes. Employers must count all employees including full time, part time, and temporary employees.

Employers whose employee count must take the average number of employees from the previous year per week to determine employee count. Any retail business with multiple locations or a chain business must include the total number of employees for all of the locations.

  • 20+ employees
  • Primary business is to sell consumer goods

Fast Food Scheduling Restrictions

New Employees: Upon hiring employees, fast food employers must provide a good faith estimate of the number of hours  the employee can expect to work per week.  The Good Faith Estimate must detail the expected dates, times, and locations for the expected hours.

If changes are made during employment, the employer must update the good faith estimate as soon as possible following the change.

Employers are also required to provided the new employee with a work schedule before their first date of work. The schedule has to identify regular and on-call shifts. It must include at least 7 days. After the first schedule, all other schedules must provide at least a 14 day notice.

Posting Schedules: All employee schedules must be posted in a conspicuous place.

They must also provide employees with an individual copy either with a hard copy or electronically. Any changes to the work schedule must be communicated to the employee within 24 hours of the employer’s knowledge of the changes.

Previous Schedule Requirements: Fast food employees must also be able to provide the previous three years of the employee’s schedule upon request.

They must also be able to provide to any requesting employee a schedule of all the work schedules for the employees who work at that location. (WHY?)

Employers cannot require employees to work shifts that were not on the original schedule. If the employee agrees to work additional shifts, than their written permission must be obtained.

Fast Food Premium Pay Requirements for Employers who Changes Schedules

Employers who make changes to the schedules are required to pay premium pay to the affected employees. This includes any changes made to the schedule with less than a 14 day notice.

Employers must compensate employees for adding hours, cancelling shifts, and other changes.  All of these pay premiums are in addition to any regular pay the employee earns.

Wage Penalty Reason For the wage Penalty Time Frame of Change
$10 Any Change adding hours to the shift More 7 days

Less 14 days notice

$10 Any changes on the date or starting or ending time for the shift with no additional hours or loss of hours More 7 days

Less 14 days notice

$20 Every change where hours are subtracted or a shift is cancelled More 7 days

Less 14 days notice

$15 Any change where hours are added Less 7 days notice
$15 Date or start or end of a shift is changed with no loss of hours Less 7 days notice
$45 Changes where hours are subtracted or a shift is cancelled Less 7 days

More 24 hours notice

$75 Changes where hours are subtracted or a shift is cancelled Less than 24 hours notice

Exceptions to the Scheduling Restrictions

Employers are not required to pay premium pay to employees under a few specific exceptions.

This includes when the employer’s operations can’t continue due to threats to the employees or their property.

It also includes a public utility or public transportation failure. Additionally, flood fire or natural disaster are considered exceptions as are a declared state of emergency and severe weather conditions.

If an employee can’t make it to work safely, but another employee is called into work, the employee whose shift is cancelled is not entitled to penalty pay, but the employee who is called into work must still receive premium pay.

Further, if employee’s request in writing a change to their schedule, those changes do not obligate the employer to pay a premium rate.

Lastly, if two employee agree to swap schedules, then the employer is not obligated to pay the employee’s premium rate for those changes.

  • Threats to Employees or Employer’s physical property
  • Public Utility or Public Transportation Failure
  • Flood, Fire, Natural Disaster
  • A Declared State of Emergency
  • Severe weather conditions
  • When an employee requests changes in writing
  • When two employees agree to swap shifts.

Restriction in Hiring New Employees

Employers who have additional hours to fill are restricted from hiring permanent or temporary help until they have first offered the extra hours to existing employees.

This includes both on-call and regular shifts.

Employers must offer all employees the chance to work extra hours, regardless of the usual work location of the employees and cannot only offer the employees at the specific location the opportunity to work extra hours.

Employers are required to post a set of information about the available shifts when posting the shifts for employees.

  • The number of available shifts
  • The schedule of the shifts
  • Whether the shifts are at the same time each week
  • The length of time or duration that the employer anticipates the shifts being available
  • The number of employees needed to cover the shifts
  • The criteria the employer will use for filling the shifts
  • The process date and time employees must notify employers of their desire to work the shifts
  • That the employers may accept a subset of the shifts being offered, but that they will be distributed according to the criteria mentioned in the offering.
  • A notice that while any employee can accept shifts being offered, the shifts may be distributed first to employees working at the location where the shifts will be worked

The employer must provide employees at least three days notice of available shifts and must post the notice at conspicuous locations and must also deliver an individual copy to employees either in hard copy or an electronic copy.

Employers without an employee self service portal such as is offered through SwipeClock will find they spend a lot of unnecessary time delivering notices to employees when notices can easily be distributed with the click of a mouse instead.

Clopenings is Forbidden in NYC

Clopenings is a nickname for the practice of scheduling employees to work a closing shift at a restaurant and then to return a few hours later to work the opening shift the next day. Seattle set strict limits on clopenings, but NYC is striker still.  

The new series of laws restrict employers from scheduling employees without providing at least 11 hours of rest between the end of one shift and the beginning of the next. The only exception is if the employee requests to work those shifts in writing.

Even when the employee requests to work clopenings, the employer must still pay premium wages to that employee. The premium wage is $100 for every instance of a clopening.

Payroll Deductions for Donations to Nonprofit Organizations

Fast food employers must provide the option for employees to have automatic payroll deductions for donations to a non-profit of their choice.

Employers must deduct these voluntary donations and remit them directly to the organizations. Unions or labor organizations are excluded under the State’s non-profit laws.

However, other organizations such as Fight for $15 are included as optional non-[profits.

Employers must create a notice that employees can fill out to make these contributions. The information included in the notice must include a voluntary authorization for deductions. It must also include the employee’s name, address, and signature.

The employee must designate the amount, frequency and start date of the contributions. Employees must also provide the organization’s name, address, email, website, phone number and contact person.

Employers have 15 days from the payroll deduction to send the contributions to the applicable non-profits.  

Retail Employer Scheduling Restrictions

In addition to fast food employer scheduling restrictions, retail employers also face strict scheduling restrictions. These restrictions are similar, but not identical to the fast food restrictions. Please see Part 2 of this series for employer restrictions to retail employees.

Additionally, the record keeping requirements and the penalties for non compliance for both fast food and retail employers are also found in Part 2.

Let SwipeClock Help

As shown above, the restrictions for New York Fast Food and Retail employers are strict and expansive. Employers who violate these new ordinances face expensive penalties. In addition New York City also has strict fines for violations of their minimum wage and sick leave ordinances.

Only 33 days after these new laws go into effect the New York State FMLA law takes effect on January 1, 2018.

It is almost impossible for employers to comply with these many labor laws without an intelligent workforce management software.

SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

About SwipeClock

SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities.

The company’s products, including TimeWorksPlus, TimeSimplicity and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage.

SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com.

Resources

On Call Scheduling: Int 1387

Predictable Scheduling Int 1396

Rest Between Shifts Int 1388

Extra Hours Int 1395

Voluntary paycheck deductions Int 1384

Written by Annemaria Duran. Last updated on September 18, 2017

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