On November 26, 2017, New York City will join other cities, such as San Francisco and Seattle, when its predictive scheduling laws take effect and require retail employers to give employees a minimum amount of advance notice of their work schedule. Covered retail employers will be required to provide employees with written schedules at least 72 hours before the first shift on the work schedule and to conspicuously post the schedule at least 72 hours before the beginning of the scheduled hours of work. Employers must also update the schedule and directly notify affected employees after making changes to the work schedule, as well as transmit the work schedule electronically, if that is how schedules are regularly communicated.
Which Retailers Are Covered?
This legislation applies to “retail businesses,” which are defined as entities with 20 or more employees engaged primarily in the sale of consumer goods at one or more stores within the city. The good news for small retailers is that the law does not impact single location, “mom and pop” shops that have fewer than 20 employees.
For purposes of the legislation, “employees” are defined as full-time, part-time and temporary employees (including seasonal/holiday workers). If the number of employees fluctuates (over the holidays, for example), the number of employees is determined for the current calendar year based upon the average number of employees who worked for compensation per week during the preceding calendar year. If the employer operates a chain business, then the total number of employees in that group of establishments must be counted. “Consumer goods” means products that are primarily for personal, household, or family purposes, such as appliances, clothing, electronics and groceries.
What This Means for Retail Employers
This holiday season, the flexibility of retail employers when scheduling shifts to meet day-to-day business needs is about to change, just as retailers hit the busiest time of the year. Retail employers will not be permitted to:
- Schedule an employee for an on-call shift;
- Cancel a regular shift for a retail employee within 72 hours of the scheduled start of such shift;
- Require a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing; and
- Require a retail employee to contact a retail employer to confirm whether or not the employee should report for a regular shift fewer than 72 hours before the start of such shift.
The law also requires retail employers to provide an employee, upon request, with his/her work schedule, in writing, for any week the employee worked within the prior three years. Upon request, retail employers will also be required to provide the most current version of the work schedule for all employees at that work location, regardless of whether changes to the work schedule have been posted.
What Remains the Same for Retail Employers
Some important scheduling flexibility will remain intact for retail employers. For example, employers will still be able to give an employee time off at the employee’s request and/or allow an employee to trade shifts with another employee. Retail employers may also make changes to employees’ work schedules with less than 72 hours’ notice if the employer’s operations cannot begin or continue due to matters beyond their control, such as:
- Threats to the retail employees or the retail employer’s property;
- Failure of public utilities or the shutdown of public transportation;
- Fire, flood or other natural disaster; or
- State of emergency declared by the president of the United States, governor of the state of New York or mayor of the city.
Penalties for Violations
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.
When the law takes effect on November 26, New York will be the latest city to enact a predictable scheduling law, but it will not likely be the last. San Francisco, Seattle and other municipalities have enacted similar laws and the trend continues to grow. National retailers that rely on fluid personnel schedules should check the jurisdictions in which they operate to ensure they are in compliance with applicable law.