United States: New York City Council Committee Pursues Predictive Scheduling And Other Labor Bills

Last Updated: March 7 2017
Article by Michael J. Lotito and Stephen A. Fuchs

On Friday, March 3, 2017, the New York City Council's Committee on Civil Service and Labor considered a package of six bills that could significantly affect the scheduling of fast food and other employees. These measures seek to improve working conditions related to employee scheduling. Similar laws have been passed in San Francisco and Seattle.1

Proposed Bills Affecting Fast Food Employers

Four potential measures specifically apply to New York City's fast food workers, a category that includes non-salaried employees of fast food establishments whose job duties involve, among other things, customer service, cooking, delivery, or cleaning. Generally speaking, the bills define "fast food establishments" as establishments that are part of a chain with 30 or more locations nationally, offering limited service, with a primary purpose of service food or drinks, and where customers order and pay before eating.

The first of the four bills concerning fast food workers would ban the scheduling scenario known as "clopening," which occurs when an employee is scheduled to close and then open the establishment as his or her next shift. Under this bill (Int. No. 1388-2016), unless the employee consents, an employer must schedule a break of more than 11 hours between an employee's shifts. If the employer fails to do so, it would pay the employee $100 for each instance of "clopening."2

A second bill (Int. No. 1396-2016) aims to make the schedules of fast food workers more predictable.3 If passed, this measure would require fast food employers to post a notice of employee's rights and to notify employees, upon hire, of their estimated work schedule. On an ongoing basis, employers would be obligated to post the workers' schedule at least 14 days in advance. An employer would then pay a premium (either $15 to $45 per instance, depending if hours are added or removed) to any employee whose schedule is changed—i.e., whose shift is cancelled, shortened, or moved—with less than 14 days' notice. If a change resulting in a reduction of shift hours is made with less than 24 hours' notice, the employer would pay a premium of $75. The bill creates a private cause of action with a two-year statute of limitations and an array of available damages and penalties for employees seeking to enforce these rights.

The goal of yet another bill (Int. No. 1395-2016) is to "provide part-time fast food workers with a path toward additional hours and full-time employment, should they want it."4 This bill, if passed, would mandate that fast food employers offer available shifts to current employees at the relevant location before hiring more workers. If shifts become available, the employer must post a notice, for three consecutive days, informing employees about the number and schedule of shifts offered, along with other details about the shifts and the process by which employees may express interest. The proposed bill explains the mechanism for distributing work and further obligates employers to offer training opportunities to enable current workers to qualify for open positions.

A fourth measure specific to fast food workers (Int. No. 1384-2016) would enable them to make voluntary contributions to nonprofit organizations through payroll deduction.5 The proposal describes how such contributions could be authorized by employees and processed by employers.

Proposed Bills Affecting Retail and Other Employers

Additional bills under consideration by the Committee on Civil Service and Labor concern the scheduling of employees outside the fast food context.

In one such bill (Int. No. 1387-2016), retail employers would be prohibited from scheduling employees for any on-call shifts.6 Retail employers also could not cancel any scheduled hours, or demand that employees pick up additional hours, with less than 72 hours' notice. Among other things, this bill would require employers to post the workers' schedule at least 72 hours in advance, with updates as needed. Retail employers also could not give an employee less than 20 hours of work in any 14-day period, not including any leave time elected by the employee.

The final measure addressed on Friday (Int. No. 1399-2016) would create a right for employees to request and receive flexible work arrangements, without fear of retaliation.7 The bill defines "flexible work arrangement" to include a variety of changes to an employee's terms and conditions of employment, such as a modified work schedule, limits on availability, part-time employment, or working from home. This proposal would allow an employee to request, in writing, a flexible work arrangement; this written request then obligates the employer to engage in an interactive process to consider the request in good faith. In an emergency situation—such as a caregiving snafu, or personal or familial health emergency—an employee may submit a request for a temporary accommodation, either orally or in writing. In an emergency situation, the employer must allow the temporary change for one business day, and up to four times per year.

At the conclusion of Friday's public hearing on these bills, I. Daneek Miller, Chair of the City Council's Committee on Civil Service and Labor, remarked: "We look forward to working with advocates and industry folks as we further this legislation and most importantly, we look forward to passage and signing of this legislation . . ."

A video of Friday's hearing can be accessed here.

We will continue to monitor these bills as they proceed through the New York City Council and will report any significant updates as they occur.

Footnotes

1 Doug Smith, Seattle City Council Approves Secure Scheduling Ordinance, Littler Insight (Sept. 20, 2016); Michael Brewer, et al., San Francisco Ordinance Imposes New Burdens on 'Formula' Retail Employers, Littler Insight (Dec. 9, 2014).

2 Details about this proposed bill (Int. No. 1388-2016) are available at: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900927&GUID=4D7C5A27-A6B8-4CAC-8A5A-99862C5FED74&Options=&Search=.

3 Details about this proposed bill (Int. No. 1396-2016) are available at: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900942&GUID=F6382D3F-7D70-4324-A083-65BD4E355E55&Options=&Search=.

4 Details about this proposed bill (Int. No. 1395-2016) are available at: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900940&GUID=BA0D943C-4827-45D5-9EA4-75A6B5B46B12&Options=&Search=.

5 Details about this proposed bill (Int. No. 1384-2016) are available at: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900907&GUID=3671A5D8-2C46-4169-978A-F318543B40A4&Options=&Search=.

6 Details about this proposed bill (Int. No. 1387-2016) are available at: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900928&GUID=5A7DF104-0104-463E-96FC-A7FB1FDD9B8F&Options=&Search=.

7 Details about this proposed bill (Int. No. 1399-2016) are available at: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900941&GUID=68DC01AE-C577-4B86-B3E5-B9D98836C1E2&Options=&Search=. 

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Michael J. Lotito
Stephen A. Fuchs
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