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Mayor de Blasio Signs into Law Flexible Scheduling Legislation for NYC Retail and Fast Food Employers
Earlier this year, the New York City Council proposed a set of rules known as the “Fair Work Practices” legislation, which is comprised of six separate bills that regulate scheduling practices by certain employers. Five of these bills apply only to the retail and fast food industries in New York City. On May 30, 2017, Mayor de Blasio signed these five pieces of legislation into law. The remaining bill numbered 1399 (“1399”), which applies to all New York City employers, has not yet been enacted.¹ We expect that 1399 will be revised to eliminate mandatory work scheduling practices for all other employers. These laws are scheduled to take effect in six months.
The following is a summary of each of the five new laws² :
1. Bill Nos. 1388 and 1396: in the fast food industry, (i) prohibit what is known as “clopenings” -- employees working back to back closing and opening shifts when there are fewer than eleven hours in between the two shifts; if an employee requests such shifts or consents to the same, the employer will have to pay the employee an additional $100 and (ii) require 14 days’ notice of shift changes, otherwise premium pay is due in the amount of approximately $10 to $75.
2. The “Access to Hours” legislation (Bill No. 1395): in the fast food industry, requires fast food managers to offer open shifts to current part-time employees before hiring new employees.
3. Bill No. 1384: provides fast food employees the ability to make contributions to a non-profit advocacy organization by way of payroll deductions for organizing efforts.
4. Bill No. 1387: in the retail industry, prohibits on-call scheduling, including the prohibition against canceling or changing shifts within 72 hours of the start of the shift except under certain circumstances. Retail employers will also be obligated to post schedules at least three days prior to the beginning of the scheduled shifts.
Bill numbered 1396 (“1396”) provides the general provisions of the package, including key definitions, and amends the New York City Administrative Code by adding a new Chapter 12 entitled “Fair Work Practices” to the existing Title 20 of the Code, which are the rules enforced by the Department of Community Affairs. All five pieces of legislation fall under this new Chapter 12. 1396 provides, in part, the following definitions:
Employee. The term “employee” means any person covered by the definition of “employee” set forth in [the New York Labor Law] or by the definition of “employee” set forth in [the United States code] and who is employed within the city and who performs work on a full-time or part-time basis, including work performed in a transitional jobs program pursuant to section 336-f of the social services law, but not including work performed as a participant in a work experience program pursuant to section 336-c of the social services law.
Fast food employee. The term “fast food employee” means any person employed or permitted to work at or for a fast food establishment by any employer that is located within the city where such person’s 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 term “fast food employee” does not include any employee who is salaried.
Fast food employer. The term “fast food employer” means any employer that employs a fast food employee at a fast food establishment.
Fast food establishment. The term “fast food establishment” means any 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, including (A) an integrated enterprise that owns or operates 30 or more such establishments in the aggregate nationally or (B) an establishment operated pursuant to a franchise where the franchisor and the franchisees of such franchisor own or operate 30 or more such establishments in the aggregate nationally. The term “fast food establishment” includes such establishments located within non-fast food establishments.
Retail employer. The term “retail employer” means any employer that employs a retail employee at a retail business. The term “retail business” means any entity with 20 or more employees that is engaged primarily in the sale of consumer goods at one or more stores within the city. For the purposes of this definition, “consumer goods” means products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items.
On-call shift. The term “on-call shift” means 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.
Regular shift. The term “regular shift” means a span of consecutive hours starting when an employer requires an employee to report to a work location and ending when such employee is free to leave a work location. Breaks totaling two hours or less are not an interruption of consecutive hours, provided that such breaks do not include time when the employee’s work location is closed. “Regular shift” does not include the hours worked by an employee who is called into work while on an on-call shift.
We will keep you apprised of any movement regarding 1399, which in its current form applies to all New York City employers. In the meantime, New York City fast food and retail employers covered under these new rules should take steps to review their scheduling policies and practices to ensure compliance with the new legislation. All managers who are responsible for devising schedules should be notified and trained. Because this memo only briefly summarizes the new legislation, we encourage employers to seek legal advice with respect to implementation of these new rules.
If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Robert L. Sacks, Michael Lydakis, Jennifer Schmalz or Jaclyn Ruocco. | 
