Predictive Scheduling – NYC

November 16, 2017

Over the past few years there has been a trend throughout the U.S. to enact predictive scheduling laws. These laws aim to reduce eleventh hour schedule changes by requiring employers to provide advanced notice to employees of their scheduled shifts and prior to schedule changes. Failure to do so will result in penalties imposed on employer, such as monetary fines and/or premium payments by the employer to the affected employees. These laws are favored by employees because they provide consistency and advanced notice, which allows employees to prepare and plan for obligations and activities outside of work.

New York City recently joined the predictive scheduling trend by passing a law, effective November 26, 2017, that will implement predictive scheduling for non-salaried fast food and retail employees. The law is part of the “Fair Workplace” legislative package and requires employers to post employee schedules at least two weeks in advance. If employers fail to do so, they are required to pay a premium to each affected employee.

Retail Industry

Specifically, employers in the retail industry with 20 or more employees are required to provide written work schedules at least 72 hours in advance of the first shift on the schedule. In addition, these employers must provide at least 72 hours’ notice before cancelling a shift. Employers may allow employees to work a new shift if he/she consents in writing. Further, employers must directly notify employees of schedule changes. It is essential that employers keep records pertaining to employee schedules and provide them upon request by the Director of the Department of Labor’s Labor Standards Division.

Fast Food Industry

The New York City law also requires fast food chains to follow similar rules. Such employers are required to provide new employees with estimates of their schedule for the duration of their employment. Further, they must provide employees with a week’s work schedule at least two weeks in advance. If a schedule change is made on short notice, the employer is required to pay the affected employee a premium between $10.00 and $75.00 depending on the amount of notice given for each change to the employee’s work schedule. Most significantly, the New York City predictive scheduling law establishes a private right of action for employees seeking to enforce their rights.

In November 2014, San Francisco became the first U.S. city to pass predictive scheduling legislation. Subsequently, various cities and states followed by proposing or enacting some variation of the law. In addition, California, Connecticut and New Jersey have a variation of the law. In light of the expanding trend, employers in jurisdictions that lack predictive scheduling laws should prepare for its expected enactment.

Finally, predictive scheduling laws subject employers to a wide range of challenges. Employers can be sued for violations under the law. One challenge for employers in the retail and food industries is that they may no longer utilize on-call scheduling. Additionally, employers are required to display posters that set forth employee rights and protections under the law. Employers are also mandated to retain employee records for a minimum of three years. If the organization fails to retain, maintain, or produce records, a rebuttable presumption is established that a claimed violation is true. Employers are also prohibited from retaliating against employees who attempt to exercise their rights under this law.

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