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Work Scheduling Rules Just Got More Complicated for Employers in NYC

August 13, 2018

Int. 1399-A, titled, “Temporary Changes to Work Schedules for Personal Events and Protections from Retaliation for Making Schedule Change Requests,” amended New York City’s Fair Workweek Law to allow employees to request temporary changes to their schedules for personal events without fear of retaliation. The amendment is effective as of July 18, 2018, or upon expiration of an existing collective bargaining agreement (CBA).

Employees covered: All employees working in NYC for more than 80 hours in a calendar year (not just retail and fast food workers), after 120 days of employment, regardless of the location of the employer or the town/city of the employee’s residence.

Employees not covered: (a) employees working under a CBA if the CBA both waives law’s provisions and provides employees with at least comparable benefits regarding temporary schedule changes; (b) most employees working in the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations; and (c) government employees.

Requirements: An employee must be granted “temporary changes” to their schedule for "personal events." Each calendar year, an employer must grant an employee two such schedule change requests of up to one business day each, or one schedule change request that spans two business days. Retaliation against an employee for exercising their rights under the law is prohibited.

  • A "temporary change:" a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using unpaid time off, paid time off, working remotely or swapping or shifting work hours.
  • A "personal event:” (a) the need for a caregiver to care for a child under 18 or a "care recipient;” (b) the need to attend a legal proceeding or hearing for public benefits to which the employee, a family member or the employee’s care recipient is a party; or (c) any other reason for which an employee may use safe time or sick time under the New York City Paid Safe and Sick Leave Law. Read our alert on the topic.

  • A "caregiver:” a person who provides direct and ongoing care for a minor child or a care recipient.

  • A "care recipient:" a person with a disability who is a family member or household member and relies on the employee for medical care or to meet the needs of daily living.

  • A "family member:” an individual whose close association with the employee is the equivalent of family, child (biological, adopted or foster child, legal ward, child of an employee standing in loco parentis), grandchild, spouse, domestic partner, parent, grandparent, child or parent of an employee’s spouse or domestic partner, sibling or any other individual related by blood to the employee.

Employers who provide employees with benefits that are at least equal to the law’s requirements will be deemed to be in compliance.

"Other" schedule changes: Employees may request additional changes to their schedules and in doing so are protected against retaliation for making such requests. The requests must be submitted in accordance with the law, and, while employers are not required to grant these requests, they must respond in accordance with the law.

Interplay with safe/sick time: An employee does not need to use all of their paid safe or sick time before requesting temporary schedule changes, and employers cannot require employees to use paid time off. However, employees may opt to use their paid time off instead of unpaid leave.

Safe/sick time granted to an employee that is not related to a temporary schedule change request does not count toward the employee’s annual temporary schedule change allowance.

Employee request procedure: As soon as an employee learns they will need a temporary change to their work schedule they must notify their employer, including the date of the change and stating that the change is needed due to a personal event. In addition, unless the employee requests unpaid leave, the employee must propose the type of accommodation.

An employee’s initial request does not have to be in writing. However, if the initial request is not in writing, the employee must follow up by submitting a written request containing all the required information as soon as possible, but no later than the second business day after returning to work upon conclusion of the temporary schedule change. Employers may require written requests to be submitted via email.

Employer response procedure: The employer must immediately respond to an employee’s initial request, but just as the employee’s initial request need not be in writing, neither does the employer’s initial response.

However, if the employer’s initial response is not in writing, the employer must provide a written response as soon as possible, but no later than 14 days after the employee submitted their written request. The written response may be provided via email. A written response is not required if an employee fails to submit their request in writing, but the employer cannot deny a request solely based on this.

The employer’s response must include the following:

  • If the employer grants the request, either:
    • The employer’s agreement to the temporary schedule change under the terms requested, or
    • That the employer will provide time off without pay for the schedule change
  • If the employer denies the request, an explanation of the reason for the denial
  • Number of requests the employee has made for temporary schedule changes 
  • How many days the employee has left in the year for temporary schedule changes

Please note: An employer may only deny an employee’s request if the employee has already used their two annual requests or two annually allotted business days, or if an exemption applies (see "Employees not covered" above).

Required posting: Employers must post the Notice of Employee Rights in a location visible to all employees, blown up to at least 11” x 7.” The notice must be posted in English and, once translations are available, any language that is the primary language of at least 5% of employees at that workplace. Translated notices will be posted on the NYC Department of Consumer Affairs (DCA) website.

Recordkeeping requirements: Employers must maintain electronic records of compliance for at least three years. Such records include documentation of all requests made in accordance with this law, whether for a "temporary change" or other reason, and all responses to such requests.

Consequences of violations: If an employee files a complaint with the city or an action in court, employers may be liable for compensatory damages, other forms of relief and penalties payable to effected employees, as well as fines payable to the city. Employers may also be required to rescind or reverse and make-up for any discipline issued to an employee or to reinstate a terminated employee when such actions were taken in violation of the law.

Additional resources: The DCA has published various resources to aid employers with compliance, including an employer/employee-friendly overview of the law, Frequently Asked Questions, a PDF file of the law and a complaint form for employees.

What next: Employers must post the required Notice of Employee Rights, as explained above. In addition, any company policies or handbooks should be reviewed to ensure compliance with the law; employers should consider implementing a policy regarding temporary schedule changes. Employers should also establish a procedure for receiving and responding to temporary schedule change requests and should train all managers, supervisors, human resources representatives and other employees who may receive and/or respond to requests on their obligations under the law and any procedural changes resulting from it.

For more information or for assistance with meeting these new requirements, please contact our Labor and Employment group.

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Drogin, Laurent S. Partner and Head of Labor & Employment Practice Partner and Head of Labor & Employment Practice 212.216.8016 VCard
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