Employment Update: NYC’s “Fair Work Week” Legislation Affects Fast Food and Retail Industries

by | Jun 20, 2017 | Labor & Employment | 0 comments

On May 30, 2017, New York City Mayor Bill de Blasio signed into law a set of bills to provide additional protections to workers in the fast food and retail industries. The bills – called the “Fair Work Week” legislation package – consist of five laws intended to improve working conditions and prevent perceived unfair scheduling practices for employees of covered “fast food establishments” and “retail businesses.”

The majority of the Fair Work Week legislation covers any “fast food establishment” “(i) that has as its primary purpose serving food or drink items; (ii) where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out or delivered to the customer’s location; (iii) that offers limited service; (iv) that is part of a chain; and (v) that is one of 30 or more establishments nationally[.]” These bills protect any “fast food employee” who is “employed or permitted to work at or for a fast food establishment that is located within [New York City], by any employer, where such job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning or routine maintenance.”

The legislation package also contains a new law that covers any “retail business” with “20 or more employees that is engaged primarily in the sale of consumer goods at one or more stores within [New York City].” Consumer goods are further defined as “products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items.” This bill protects employees who work for a New York City “retail business” as defined under the law.

Below is a brief description of the five new laws:

(1) 1396-A applies to establishments and employees in the fast food industry. This law intends to create more predictable work schedules and will require employers to provide workers with at least 14 days’ advance notice prior to any work schedule changes. Employers must pay a premium to workers for any work schedule changes made with less than 14 days’ notice to the worker.

(2) 1387-A applies to businesses and employees in the retail industry and intends to create more predictable work schedules for retail workers. This law will prohibit the practice of “on-call scheduling,” or requiring the employee to be available to work, and to contact the employer or wait to be contacted by the employer to determine whether the employee must report to work. The law will also prohibit employers from modifying an employee’s work schedule within 72 hours from the start of the employee’s work shift. Employers are required to post their employees’ work schedules at least 72 hours prior to the start of their work shifts and, upon an employee’s request, provide a written copy of the employee’s work schedule for any week worked within the prior three years, or provide the most updated work schedule for all employees at the work location.

(3) 1388-A applies to establishments and employees in the fast food industry. This law will prohibit “clopenings,” or working consecutive shifts with fewer than 11 hours between each shift where the first shift closes the restaurant and the second shift opens it the following day. Employers must pay an employee $100 for each instance an employee works a “clopening” shift.

(4) 1395-A also applies to establishments and employees in the fast food industry. This law is intended to provide workers with opportunities for full-time employment and additional hours. Before an employer can hire additional part-time workers, an employer must offer all available hours or shifts to current workers at all establishments owned by the employer or, if the employer owns at least 50 establishments in New York City, at a subset of establishments based on its’ geographic distribution. An employer must offer all available hours until the employer would be required to pay overtime or all existing workers have rejected the available hours, whichever comes first.

(5) 1384-A – the Fast Food Empowerment Act – applies to establishments and employees in the fast food industry. This law will allow workers to voluntarily contribute a designated portion of their pay to a not-for-profit organization of their choice. Although unions are not permitted to seek contributions under this law, workers can make contributions to worker advocacy groups directly through their paycheck. Employers must deduct the designated amount from the worker’s pay and remit the donation directly to the worker’s not-for-profit of choice.

The Fair Work Week legislation package will take effect on November 26, 2017 and will provide new protections in addition to the State’s scheduled minimum wage increase. As previously reported, the minimum wage for New York City’s fast food workers is expected to reach $15 per hour by 2018.

Employers in the fast food and retail industries must be prepared to make significant adjustments to comply with the Fair Work Week laws. Employers affected by these new laws should contact counsel for advice and guidance to achieve compliance prior to the effective date of November 26, 2017.

This article has been provided as a service to readers and is intended for educational purposes only.  This information should not be construed as legal advice or to create a lawyer-client relationship.  Readers should retain counsel for legal advice and any further inquiries.