New York Enacts Restrictive Scheduling Ordinances for Retail Part Two
New York City Passes Fair Workplace Ordinance on Fast Food and Retail Business
On November 26, 2017, a series of laws named the Fair Workplace Ordinance takes effect. The Fair Workplace Ordinance is a set of scheduling restrictions imposed on both fast food and retail businesses and carries with it a set of heavy penalties for employers.
For specifics on the requirements for fast food employers, please see our Part 1 article on New York’s Restrictive scheduling Ordinances.
Fast Food Restaurant Restrictions
The new ordinances require advanced notice for all hours that are scheduled. Fast Food businesses must provide all new employees with good faith estimates of the estimated schedules and hours to be worked.
Further employees must be given notice of 14 days advanced notice for new schedules and any changes made after in less than 14 days notice requires that the employer pay a premium rate to the affected employee.
Lastly, employees cannot be scheduled for clopenings, which is the practice of closing the restaurant one day and then working the opening shift the next morning. Employers must provide at least 11 hours of rest between shifts. There are some exceptions and other specifics to these rules listed in part one of this article.
Retail Employers Scheduling Requirements
Unlike fast food employers, which are still allowed to schedule on-call shifts, retail employers are now restricted from scheduling any on-call shifts. Employers are also restricted from canceling employee shifts within 72 hours of when the affected shift should start.
In addition, employees cannot be required to work with less than 72 hours notice before the new shift unless the employee consents in writing.
Lastly, retail employers cannot require employees to contact the employer to see if they are scheduled to work a regular shift with less than 72 hours notice before the shift starts.
- No on call shifts for retail employees
- No canceling shifts within 72 hours of the scheduled shift
- No requiring additional shifts without at least 72 hours notice
- No requiring employees to contact the employer to find out if they work a regular shift without at least 72 hours notice before the shift should start.
Exceptions to Shift Changes Allowed by the Scheduling Ordinances
Retail employers are allowed a few exceptions to the scheduling restrictions imposed by the new ordinances.
This includes any time a shift is canceled because the employer receives threats to the employees or to their property.
It also includes any time public utilities fail or there is a failure of public transportation.
Fire, flood, or natural disasters also provide the employer an exception to schedule changes as does a declared state of emergency. A state of emergency must be declared by the governor of New York State, the Mayor of New York City, or the President of the United States.
Lastly, employers are allowed to make schedule changes if the employee requests time off in writing or if two employees agree to trade shifts.
- Threats to employees or the premises
- Fire, flood, or natural disaster
- A declared state of emergency
- Public utility failure
- Shut down of public transportation
- Employee requests time off
- Employees agree to swap shifts
The 72 Hour Schedule Rule
Employers must provide employees a final schedule at least 72 hours before the schedule begins. Employees must be individually notified. Employers can use a system like SwipeClock’s Employee Self Service Portal to notify employees electronically of the changes.
The employer must retain employee schedules for at least three years and must be able to provide the employee their schedule for the previous three years in writing upon request. In addition, employers must be able to provide the current work schedule for all the employees at that location.
Record keeping Requirements under Fair Workplace Law
Under the new ordinance, New York City created the Office of Labor Standards to oversee compliance with the new scheduling laws.
The director is responsible to publish notices that employers must post in the workplace in a conspicuous location. The notices must be posted in both English and in any other language that at least 5% or more of the employees speak at a specific location.
Records must be maintained for at least three years. If the employer doesn’t keep adequate records, then a presumption of guilt is assumed in any alleges of violations. This requires the business to both retain the records and to be able and willing to reproduce and provide records upon a complaint of any violations.
Penalties and Enforcement of the New Predictive Ordinances
Enforcement of the ordinances can be overseen by the director of the Office of Labor Standards. In addition, the NYC corporation counsel can bring lawsuits against employers for violations of the laws. Lastly, the ordinance gives employees the right to sue in civil court for violations.
Fines can include compensatory damages to the employee, penalties of $300, and a per violation fine that varies depending on the violation. Violations can be $500 per violation for the first violation and $1,000 for willful violations.
Further, civil monetary damages can be up to $15,000 for a “pattern and practice” of violating the scheduling laws.
In addition, employers can be responsible for attorney fees.
This means that defending an employer’s compliance with the laws can become costly for an employer. If the employers have missing records or fails to provide the notices required under the law to employees, the employer could be responsible for tens of thousands of dollars in fines.
The Reasoning Behind the New Strict Laws
The mayor’s office announced that the reasoning behind these ultra strict scheduling laws is to “end abusive scheduling practices in the fast food and retail industries” and to “ensure . . predictable schedules and predictable paychecks for fast food and retail workers.”
Yet, it might be wise for New York City to learn a lesson from Seattle and San Francisco, both of whom have paid a high price in job loss and restaurant closures for such restrictive laws.
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 to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
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
Simplify HR management today.
Simplify HR management today.
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