New York City Enacts Predictable Scheduling Law

By William R. Horwitz

On May 30, 2017, New York City Mayor Bill de Blasio signed legislation regulating employee schedules in the retail industry. The new “predictable scheduling” law, which is set to take effect on November 26, 2017, prohibits “on-call” shifts and otherwise limits employer flexibility in creating work schedules.

Employers Covered By the Law

The law applies to any “retail employer,” which is defined as an employer:  (1) with at least 20 employees (including fulltime, part-time and temporary employees); and (2) that is primarily engaged in selling “consumer goods” at a store or stores in New York City.  The law defines “consumer goods” as “products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items.”

What the Law Prohibits

The law generally prohibits retailers from taking any of the following actions:

  • Scheduling an employee for an on-call shift (which is defined as “any time period other than an employee’s regular shift when the employer requires the employee to be available to work, regardless of whether the employee actually works and regardless of whether the employer requires the employee to report to a work location”);
  • Canceling a regular shift within 72 hours of the scheduled start time;
  • Requiring an employee (absent the employee’s written consent) to work with less than 72 hours’ notice;
  • Requiring an employee to contact an employer less than 72 hours before the start of a scheduled shift to find out whether or not the employee should report for the shift.

Exceptions

The above prohibitions do not preclude an employer from taking any of the following actions:

  • Granting an employee’s request for time off;
  • Permitting employees to trade shifts;
  • Changing work schedules with less than 72 hours’ notice in the event that any of the following circumstances would otherwise prevent the employer’s operations to begin or continue:

+  Threats to the employees or to the employer’s property;

+  A “shutdown” of public transportation;

+  A “failure of public utilities”;

+  A flood, fire or other natural disaster;

+  A state of emergency declared by the President, the Governor or the Mayor.

Additionally, the law’s requirements do not apply to employees covered by a collective bargaining agreement, provided that the law’s requirements are “expressly waived” in the collective bargaining agreement and the agreement “addresses employee scheduling.”

Additional Requirements

The law also imposes all of the following requirements on employers:

  • Employers must provide each employee with a written work schedule at least 72 hours before the start of the first shift on the schedule.
  • Employers must “conspicuously post” the work schedule in a location visible and accessible to all employees at least 72 hours before the start of the first shift on the schedule and, if the employer changes the schedule, the posted schedule must be updated and affected employees must be “directly notified.”  If the employer regularly transmits scheduling information to employees electronically, then the employer must also transmit the work schedule by electronic means.
  • If requested by an employee, an employer must provide the employee with his or her work schedule in writing for any week worked during the prior three years and the most current version of the work schedule for all employees at that work location.

Penalties for Violations

For violations of the on-call prohibitions, employers are subject to penalties equal to the greater of $500 for each affected employee or the employee’s actual damages. For failing to provide and post work schedules, employers are subject to penalties of $300 for each affected employee.  Other remedies are also available, including injunctive and declaratory relief, and attorneys’ fees.

Conclusion

New York City is the largest city to enact a predictable scheduling law, but it is not the only one.  San Francisco, Seattle and other municipalities have enacted similar laws and the trend is growing.  A retailer or other business that relies on fluid personnel schedules should check the jurisdictions in which it operates to ensure that it is in compliance with applicable law.  Even employers that are not covered by current predictable scheduling laws should start thinking about ways to operate their businesses if those laws come to their jurisdictions.  The laws are spreading and the best approach for employers is to be prepared.