July 13, 2020

Volume X, Number 195

July 13, 2020

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July 10, 2020

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New York City Council Seeks Major Workplace Reforms for Fast Food, Retail Workers

The New York City Council has introduced six bills as part of a legislative package intended to reform scheduling and workplace practices for fast food and retail workers in New York City.

The legislation, introduced on December 6, 2016, follows Mayor Bill de Blasio’s September announcement that his administration plans to implement greater protections for approximately 65,000 hourly fast food workers in the city.

On-Call Scheduling

Intro 1387, sponsored by Council Member Corey Johnson (D-Manhattan), would ban the practice of “on-call scheduling” for retail employees.

Under the bill, employers would be prohibited from scheduling a retail employee for any on-call hours – requiring an employee to be available to work, to contact the employer, or to wait to be contacted by the employer, before determining whether the employee must report to work.

The bill also would prohibit employers from:

  • canceling a work shift with fewer than 72 hours’ notice;

  • requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing;

  • requiring a retail employee to contact an employer to confirm whether the employee should report for his or her scheduled shift in the 72 hours before the start of the shift; and

  • providing a retail employee with fewer than 20 hours of work during any 14-day period – this would be offset by any hours an employee uses as paid or unpaid leave during that 14-day period.

Consecutive Work Shifts

Intro 1388, also sponsored by Council Member Johnson, would ban consecutive work shifts in fast food restaurants involving both the closing and opening of the restaurant.

The bill would prohibit employers from requiring fast food employees to work back-to-back shifts, when the first shift closes the restaurant and the second shift opens it the next day, with fewer than 11 hours in between – unless the employee consents in writing.

If an employer does schedule such back-to-back shifts, it must pay the employee an additional $100.

Shifts to Current Employees

Intro 1395, sponsored by Council Member Brad Lander (D-Brooklyn), would require fast food employers to offer work shifts to current employees before hiring additional employees.

The bill states that whenever a fast food employer has additional work shifts to provide in any fast food job position, the employer must first offer such shifts to current employees at the specific location where the additional shifts are needed before the employer can hire any additional employees or subcontractors (including temporary staffing agencies) to fill the shifts.

When shifts become available, the employer must conspicuously post the number and nature of all shifts being offered and assign additional shifts to any employee who has responded to the offer of work. Employers would be required to offer all available hours up until interested employees would be required to receive overtime pay, or until all current employees have rejected available hours, whichever comes first.

Fair Work Week

Intro 1396, also sponsored by Council Member Lander, would create general provisions for a new “fair work week” chapter of the City’s Administrative Code that outlines oversight by the Department of Consumer Affairs.

The bill also would require fast food employers to provide employees with an estimate of their work schedule upon hire and regular work schedules outlining all shifts with 14 days’ advanced notice.

Moreover, it would require different premiums to be paid to the employee when a scheduling change is made with fewer than 14 days’ of notice. If additional hours are added to a shift, or if the start and end times of a shift are changed with no loss of hours, the employer must pay an additional $15 for each shift. If hours are subtracted or if a shift is cancelled with notice to the employee of fewer than 14 days, but at least 24 hours, the employer must pay $45 for each shift. If hours are subtracted or if a shift is cancelled with fewer than 24 hours’ notice to the employee, the employer must pay $75 for each shift.

Request for Modification

Intro 1399, sponsored by Council Member Deborah Rose (D-Staten Island), would give employees the right to request a modification in their work arrangements without fear of retaliation from their employer.

The bill establishes a process for employees, protected from retaliation, to make requests regarding a modified work schedule, part-time employment, job-sharing arrangements, changes in work duties, and working from another location. The employee must make the request in writing, no more than once each calendar quarter, and the employer must engage in an “interactive process” and consider the request in “good faith.” The employer would have to provide a written response, including an explanation in the case of a denial, within 14 days of the request.

The bill also establishes an employee “right to receive” certain changes to work arrangements in the event of a childcare emergency, personal health emergency, or in the event that an employee or a family member has been the victim of a family offense matter, a sexual offense, or stalking. The employer must grant such a request up to four times in a calendar year and for one business day for each request.

Payroll Deduction

Intro 1384, sponsored by Council Member Julissa Ferreras-Copeland (D-Queens), would provide fast food workers with the ability to make voluntary contributions to not-for-profit organizations of their choice through payroll deductions. The purpose of this legislation is to make it easier for employees to support advocacy organizations working on their behalf.

The bill outlines standards for organizations eligible to receive the contributions. It also and establishes a minimum contribution of $6 per biweekly paycheck and $3 per weekly paycheck in order to minimize the burden to the employer.

For purposes of this legislative package, 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 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 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.

All six bills within the package have been referred to the City Council’s Committee on Civil Service and Labor. Before moving any further in the legislative process, the bills must receive a public hearing by the committee during which all stakeholders would have the opportunity to testify.

No further action on the legislative package is expected until 2017.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 350


About this Author

Jonathan L. Bing, New York, Government Relations, Jackson Lewis Law firm

Jonathan L. Bing is a Principal in the New York City and Albany, New York, offices of Jackson Lewis P.C.

Mr. Bing represents clients in a broad range of advocacy including advancing legislation in the New York State Legislature and New York City Council; securing funding from State and City budgets for non-profit organizations; advising on cutting through the “red tape” of government, and, defending clients against investigations by the New York State Department of Financial Services and Attorney General. Representative clients include the...

Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free. With respect to employee relations matters, Mr. Greenberg has extensive experience assisting clients in numerous industries with the development and maintenance of personnel policies and personnel infrastructures. In this regard, Mr. Greenberg often works on these issues with clients as business needs and culture change as a result of business transactions, such as mergers and acquisitions.

Javier A. Lacayo, Government Relations Director, New York City, Law firm
Government Relations Director

Javier A. Lacayo is a Government Relations Director in the New York City, New York, office of Jackson Lewis P.C. He has a diverse background in government affairs and political communications, with extensive experience working on behalf of New York elected officials.

Mr. Lacayo previously served as a spokesman in the New York State Assembly, the New York City Council, and the New York City Public Advocate’s Office. Throughout his career, he has helped drive the local and national dialogue on a variety of public policy issues related to climate...