United States: NYC Proposes Rules Implementing Fair Workweek Law: Spelling More Concerns For Retail Aand Fast Food Employers

Last Updated: November 1 2017
Article by Stephanie L. Aranyos

As we previously reported, New York City retail and fast food employers must prepare for the Fair Workweek Law set to go into effect on November 26, 2017. On October 16, 2017 the Department of Consumer Affairs Office of Labor Policy and Standards (DCA) published much anticipated proposed rules to implement the Fair Workweek Law and provide needed guidance to covered employers. Rather than providing needed clarity, the proposed rules add to the administrative headaches facing retail and fast food employers. The DCA will hold a public hearing on the proposed rules at 10:00 AM on Friday, November 17. Participants may sign up to speak in advance of the hearing or submit written comments by 5:00 PM on November 17.  Covered employers should consider submitting questions, participating in the public hearing, and raising any and all questions and concerns now to encourage the DCA to develop clear rules.

While the primary focus of the proposed rules is on fast food employers, the DCA provides certain definitions, as well as recordkeeping requirements and enforcement procedures for both retail and fast food employers. Below is a summary of the proposed rules.

Proposed Rules Applicable to Retail and Fast Food Employers

Notice of Employee Rights

Employers are required to post a notice of employee rights in an area accessible to employees at any workplace or job site where any employee works. The proposed rules would require the notice to be on 11x17 inch paper and in font no smaller than 12 point. The DCA did not provide a proposed notice form for review or comments.

Restrictions on Posting Notice of Schedules

The proposed rules prohibit both fast food and retail employers from posting or otherwise disclosing to employees the work schedule of an "employee who has been granted an accommodation based on the employee's status as a survivor of domestic violence, stalking, or sexual assault, where such disclosure would conflict with such accommodation."

Employer Records

The Fair Workweek Law requires employers to retain records that document compliance with the law for a period of three years. The proposed rules require fast food and retail employers to "maintain and retain, in an electronically accessible format," records that reflect:

  1. Actual hours worked by each employee each week;
  2. An employee's written consent to any schedule changes, where required; and
  3. Each written schedule provided to an employee.

Further, the proposed rules state that upon request, a fast food or retail employer must provide (i) an "employee's work schedule for any previous week worked for the past three years within 14 days of the employee's request," (ii) "the most current version of the complete work schedule for all employees who work at the same location within one week of the employee's request, provided that an employer not disclose the work schedule of any employee who has been granted an accommodation based on the employee's status as a survivor of domestic violence, stalking, or sexual assault, where such disclosure would conflict with such accommodation."

Fast food employers must also maintain documents that show: (i) good faith estimates, and (ii) "[p]remium pay to individual fast food employees and the dates and amounts of the payments, whether noted on an employee's wage stub or other form of written documentation."

Private Right of Action

The proposed rules also provide additional information for filing and withdrawing a private right of action. Prior to commencing a civil action, complaints filed with the DCA must be withdrawn in writing. Also, a person who initially filed a civil action containing claims based on the Fair Workweek Law may file a complaint with the DCA upon a showing that the Fair Workweek Law claims in the civil action have been withdrawn or dismissed without prejudice. The rules reiterate that the withdrawal of a complaint or the commencement of a civil action does not preclude the DCA from investigating, commencing, prosecuting, or settling a case against the employer based on some or all of the same violations.

Proposed Rules Applicable to Retail Employers

The proposed rules provide little to no clarification or guidance to retail employers regarding the scheduling of retail employees but do offer additional guidance to determine whether an entity qualifies as a covered "retail employer" under the law. The Fair Workweek Law defines a "retail employer" as "any employer that employs a retail employee at a retail business" defined as:

any entity with 20 or more employees that is engaged primarily in the sale of consumer goods at one or more stores within the city. For the purposes of this definition, "consumer goods" means products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items.

The proposed rules clarify that "[e]ngaged primarily in the sale of consumer goods . . . means greater than fifty percent of sale transactions in a calendar year at one or more locations in the City are to retail consumers." The proposed rules define "retail consumer" as "an individual who buys or leases consumer goods and that individual's co-obligor or surety" and does "not include manufacturers, wholesalers, or others who purchase or lease consumer goods for resale as new to others."

Proposed Rules Applicable to Fast Food Employers Only

Clopening

The Fair Workweek Law prohibits fast food employers from requiring employees to work "clopening" shifts without additional compensation. The proposed rules define "clopening" as "two shifts with fewer than 11 hours between the end of the first shift and the beginning of the second shift when the first shift ends the previous calendar day or spans two calendar days."

Good Faith Estimate

Under the Fair Workweek Law, fast food employers are required to provide employees with a good faith estimate of the number of hours an employee is expected to work. The law further provides that "[i]f a long-term or indefinite change is made to the good faith estimate, the fast food employer shall provide an updated good faith estimate to the affected employee as soon as possible and before such employee receives the first work schedule following the change."

The proposed rules define "good faith estimate" to mean "the number of hours a fast food employee can expect to work per week for the duration of the employee's employment and the expected days, times, and locations of those hours." The proposed rules state that "[e]ach occurrence of a long-term or indefinite change for which a fast food employer fails to provide an updated good faith estimate constitutes a violation of the Fair Workweek Law.

The proposed rules define "long-term or indefinite change" to include the following nonexhaustive scenarios:

  1. Three work weeks out of six consecutive work weeks in which the number of actual hours worked differs by twenty percent from the good faith estimate during each of the three weeks;
  2. Three work weeks out of six consecutive work weeks in which the days differ from the good faith estimate at least once per week;
  3. Three work weeks out of six consecutive work weeks in which the locations differ from the good faith estimate at least once per week; or
  4. Three work weeks out of six consecutive work weeks in which morning, afternoon, or night shifts differ from the good faith estimate at least once per week. 

The proposed rules further direct that "[m]orning, afternoon, or night shifts differ from the good faith estimate when a shift that was a morning shift is changed to an afternoon or night shift; a shift that was an afternoon shift is changed to a morning or night shift; or a shift that was a night shift is changed to a morning or afternoon shift." The proposed rules further clarify that for purposes of this section, "[m]orning means 4:00 am to 11:59 am," "[a]fternoon means 12:00 pm to 7:59 pm," and "[n]ight means 8:00 pm to 3:59 am." According to the proposed rules, "[a] shift shall be considered a morning, afternoon, or night shift based on when at least 50% of the shift is worked or scheduled to be worked."

The proposed rules provide only one exception to the definition of "long-term or indefinite change," which is that "a change in the time of shifts that is earlier or later by fifteen minutes or less shall not be considered."

Minimal Changes to Shifts

According to the proposed rule, a fast food employer may change a work schedule by 15 minutes or less without being obligated to pay the fast food employee a schedule change premium.

Notice and Offer of Additional Shifts

The Fair Workweek Law requires fast food employers to offer regular or on-call shifts to current employees before transferring employees from other locations or hiring new employees, including through the use of subcontractors. Unfortunately, the proposed rules do little to clarify these requirements of the law.

Under the proposed rules, a fast food employer must notify an employee in writing of the method by which additional shifts will be posted "upon commencement of a fast food employee's employment with the fast food employer and within 24 hours of any change to or adoption of a method."

The proposed rules provide some guidance through use of examples. For instance, a fast food employer is required to post notice of additional shifts for three consecutive calendar days. However, "[w]hen a fast food employer has less than three days' notice of a need to fill an additional shift, the fast food employer shall post notice of the additional shift as soon as practicable after finding out about the need to fill the shift. In such circumstance, any existing fast food employee may be temporarily assigned to work a shift that is during the three-day notice period." The example provided by the proposed rules states: 

Example: On Wednesday at 9 am, a fast food employer receives a call from a fast food employee who tells her that she is quitting and she will not report for her regularly scheduled shift on Friday at 9 am. The fast food employer knew of the need to fill the shift 48 hours (or two days) in advance. The fast food employer may assign another existing fast food employee to the shift on the first Friday, but must post the available shift with three days' notice to its employees and assign subsequent Friday 9 am shift to its existing fast food employees in accordance with its criteria in accordance with Section 20-1241 of the Fair Workweek Law and these rules before hiring a new employee.

The proposed rules also require that a fast food employer "notify all accepting fast food employees when the offered shift has been filled."

The proposed rules also state that a fast food employer that owns 50 or more fast food establishments in New York City may offer additional shifts to: "(1) fast food employees who work at all locations in New York City, or (2) only to its fast food employees who work at its fast food establishments located in the same borough as the location where the shifts will be worked."

Accepting and Awarding Additional Shifts

The Fair Workweek Law regarding offering additional shifts to fast food workers is vague and complex. Rather than provide clarity, the proposed rules create a more complex web of administrative hurdles for employers.

One of the most administratively challenging rules permits a fast food employee to accept only a "subset of additional shifts offered by a fast food employer." The "subset of shifts" is defined as "one or more shift or shift increments." A "shift increment" is defined as "a portion of a shift." An employee may accept an entire shift offered or any shift increment, with one exception. An employer is not required to award a shift increment accepted by the employee when the remaining portion of the shift is three hours or less and was not accepted by other employees.

Even more challenging for employers is that under the proposed rules when an employee accepts an offered shift that overlaps with an existing shift, "the fast food employer shall award the fast food employee the offered shift in lieu of the fast food employee's scheduled shift." (Emphasis added.) Employers are prohibited from conditioning "the award of the offered shift on a fast food employee's willingness to work both the non-overlapping hours of the existing shift and the offered shift." The example provided by the proposed rules states:

Example: A fast food employee's work schedule includes a shift on Mondays from 7 am to 3 pm. The fast food employer notifies employees of an additional shift on Mondays from 9 am to 5 pm, a shift that overlaps with the fast food employee's existing shift. The fast food employee accepts the shift because it will allow the employee to drop the employee's child off at school in the morning without reducing the employee's overall hours. The fast food employer must award the additional shift to the fast food employee before hiring a new fast food employee for the additional shift, provided the fast food employee otherwise meets the employer's criteria for distribution of the shift.

An employer would not be required to award additional shifts to an employee if that shift would entitle the employee to overtime pay. However, the employer must award the "largest shift increment possible that would not trigger overtime pay, provided that the remaining portion of the shift was accepted by another fast food employee or is three hours or more." The example provided by the proposed rules states:

Example: A fast food employer offers a shift on Wednesday from 12 am to 6 am to its employees. A fast food employee who is scheduled to work 37 hours during the week accepts the additional shift. The employer must award at least three hours to the fast food employee but is not required to award the entire six-hour shift to the employee because working more than forty hours would result in the employee becoming eligible for overtime pay.

Contributions to Nonprofits

The Fair Workweek Law also provides fast food employees with the ability to make voluntary contributions to a nonprofit organization through payroll deductions. The DCA published separate proposed rules regarding the implementation of the pay deduction law. The DCA will hold a public hearing on Friday, November 17 at 10:00 AM and will accept written comments through 5:00 PM November 17. The proposed rules implementing pay deductions purport to clarify when a fast food employer is permitted to start making deductions, what a false or misleading disclosure is, and other information regarding procedures to follow in connection with making permissible pay deductions.

What Employers Can Do Now

To prepare for the Fair Workweek Law, covered New York City retail and fast food employers may want to closely review the proposed rules and consider submitting comments and/or attending the hearing scheduled for November 17. Employers may want to review their scheduling policies and practices and understand the impact of the Fair Workweek Law and proposed rules for implementation. Employers can take the following steps to prepare for the law's implementation:

  • assess their scheduling practices, timekeeping systems, and payroll practices;
  • develop scheduling policies and schedule change request forms; and
  • train management and other scheduling personnel in order to ensure compliance with the laws.

In addition, employers may want to implement necessary administrative functions to ensure compliance with the Fair Workweek Law's strict notice and recordkeeping requirements. Most importantly, covered employers should make their voices heard regarding the proposed rules and the rules' failure to clarify and address key issues facing covered employers.

There are many additional nuances to the proposed rules to implement New York City's Fair Workweek Law and Pay Deductions Law. For an in-depth discussion of fast food employers' obligations under these proposals, in addition to suggestions on submitting comments to the DCA, join us for our upcoming webinar, " All About That Schedule: Navigating New York City's Predictive Scheduling Laws for Fast Food and Retail Employers," featuring Stephanie L. Aranyos (of counsel, New York City) and Evan B. Citron (associate, New York City) on Thursday, November 2, 2017, at 2 p.m. Eastern. To register for this timely program, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions