United States: The New York City Council Continues To Pass Laws Granting Employees The Power To Dictate Their Schedules

On December 19, 2017, on the heels of the effective date of the New York City Fair Workweek Act, the New York City Council passed another scheduling law that provides employees with additional rights to demand changes to their work schedules, with little flexibility for employers to reject such changes. The scheduling law, as discussed below, became effective on January 19, 2018. 

Temporary Schedule Changes for "Personal Events"

The law permits employees to demand two temporary schedule changes per calendar year for so-called "personal events."1 The City Council defined the term "personal events" quite broadly to cover situations where the employee needs to provide care to specified categories of individuals,2 to attend certain legal proceedings or hearings,3 and also any circumstance under which an employee could take sick or safe time under the Earned Sick Time Act.4

Under the act, employees can request different types of schedule changes including: (i) a limited alteration in the hours, times, or locations where they work,  (ii) using paid time off,  (iii) working remotely, (iv)  swapping or shifting work hours, and (v) using short-term unpaid leave.5 With few exceptions, employers must grant such requests twice per calendar year, for up to one business day per request (though if the employee uses two business days for one request, the employer need not grant a second request in that calendar year).6

Exemptions

The sole basis for employers to deny requests under the new law is if employees have already exhausted their two allotted requests per calendar year.7  In addition, there are certain categories of employees to whom this law does not apply, namely those who: (i) are covered by a collective bargaining agreement that waives the provisions of the law and addresses temporary schedule changes, (ii) have been employed for fewer than 120 days,9 (iii) work in certain roles for certain employers in the motion pictures and television or live entertainment industry,10 or (iv) work fewer than 80 hours in New York City in a calendar year.11

Procedural Requirements

Employees requesting schedule changes under the new law are required to notify their employer or direct supervisor, including that the change is due to a personal event, as soon as they become aware of the need for a temporary change to the work schedule,12 and are also supposed to propose the schedule change they seek (unless they seek unpaid leave).13 The request, however, need not be in writing—rather, employees need only, "as soon as is practicable," but no later than the second business day after they return to work after the temporary schedule change has concluded, submit a written request indicating the date for which the change was requested and that the change was due to a personal event.14 A failure by employees to comply with this procedural requirement merely absolves the employer from having to respond in writing; the employee in question still gets the requested schedule change.15

Employers are obligated to respond to employee requests immediately, though the initial response similarly need not be in writing.  However, unless an employee has failed to submit the written request described above, a written response is required as soon as is practicable, but in no event later than 14 days after the employee submits his/her request in writing.16 The employer's response must indicate whether they will agree to the requested temporary change or will provide the change as unpaid leave (which does not constitute a denial under the new law),17 or if the employer denies the request, the written response must explain the basis of that denial.18 Regardless of whether the response approves or denies the requested temporary schedule change, the employer's written response must note how many requests and how many business days the employee has left in the calendar year once the employer's decision is made.19

In addition to those temporary schedule changes required under the new law, it also permits employees to request, and employers to grant or deny, other changes to employees' work schedules using this same procedure (i.e., initial request, initial response, subsequent written documentation on both sides), and as set forth in rules promulgated by the director.20

Consequences of Violations

Employers face a $500 penalty per violation of this new law, as well as an order directing compliance therewith.  Violations of the requirement to provide a written response, however, may be cured without the imposition of a monetary penalty, as long as the employer presents proof that it provided the employee with the required written response within seven days of being notified of such opportunity to cure.21

Interaction with Other Laws

The new law expressly stipulates that the law is not meant to affect an employer's obligation to provide schedule changes as a reasonable accommodation under other laws or regulations.22  But the more nuanced—and murkier—overlap is that between the new scheduling law and the Earned Sick Time Act.

While the new law defines "personal events" that qualify for temporary schedule changes to include those for which employees could use leave under the Earned Sick Time Act, it makes clear that employees do not have to use leave accrued under the Earned Sick Time Act before requesting schedule changes under the new regime.23  Moreover, an employer granting unpaid leave for a personal event under the new law does not count towards an employer's obligation to provide sick time under the Earned Sick Time Act,24 nor does leave granted under the Earned Sick Time Act count towards an employer's obligation to grant leave under the new law.25 It remains unclear, therefore, how these laws will interact with one another, particularly as the Earned Sick Time Act itself permits employees, in lieu of using sick or safe time provided under the Act, and upon mutual consent with their employer, to work additional hours within a specified period of a qualifying absence—in other words, to make a temporary schedule change instead of using sick or safe leave.26

***

The new scheduling law will go into effect 180 days after it becomes law (other than for employees covered by valid collective bargaining agreements on that date, for whom the law will go into effect upon termination of those agreements).  Employers will likely face increased costs of doing business in New York City, as the temporary schedule changes contemplated by this new regime compound the already onerous requirements of the City's scheduling laws.

Footnotes

1 The full text of the law, as well as accompanying legislative materials, can be found at http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900941&GUID=68DC01AE-C577-4B86-B3E5-B9D98836C1E2&Options=ID|Text|&Search=1399-2016.

2 N.Y.C. Admin. Code § 20-1261(a) (including minor children and the caregiver's family or household members who have a disability and rely on the caregiver for medical care or to meet the needs of daily living).

3 Id. (for subsistence benefits to which the employee, a family member, or the employee's care recipient is a party).

4 Id.; see also § 20-914 (providing for sick time to, inter alia, meet certain medical diagnostic, care, or treatment needs of the employee or his/her family members, and effective as of May 2018, providing for leave to engage in specified conduct after the employee's or his/her family member's victimization by a family offense matter, sexual offense, stalking, or human trafficking).

5 § 20-1262(a).

6 § 20-1262(a)(1).

7 See generally § 20-1262(a)(4).

8 § 20-1263(a)(1).

9 § 20-1263(a)(2).

10 § 20-1263(a)(3).

11 § 20-1263(a)(4).

12 § 20-1262(a)(2)(a).

13 § 20-1262(a)(2)(b).

14 § 20-1262(a)(2)(c). To the extent employees commonly use electronic forms to request and manage leave and schedule changes, employers can require that these written requests be submitted electronically. Id.

15 Id.

16 § 20-1262(a)(3). The employer's response can be electronic if it is easily accessible to the employee. Id.

17 § 20-1262(a)(3)(a).

18 § 20-1262(a)(3)(b).

19 § 20-1262(a)(3)(c).

20 § 20-1262(b).

21 § 20-1208(h).

22 § 20-1262(c)(4).

23 § 20-1262(c)(1).

24 § 20-1262(c)(2).

25 § 20-1262(c)(3).

26 § 20-915.

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.

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