New York Predictive Scheduling Laws

A clear, flexible work schedule makes life easy for scheduling managers, employees, and customers. It allows team members to arrange for child care and make other plans throughout the week. In New York, predictive scheduling laws protect retail, hospitality, and fast food workers from being subjected to unfair scheduling practices, including:

• Not having advance notice of work schedules

• Having a schedule change at the last minute

• Being scheduled to work back-to-back closing and opening shifts

Currently, there is no federal predictive scheduling law. But many states and cities, including New York City, have added predictive scheduling legislation to their employment laws. The Department of Labor typically oversees these regulations.

New York State does not have specific predictive scheduling laws. But they do have a wage order for various industries that require increased pay for employees who are called into work but work fewer hours than expected.

This wage order also requires extra payment for any increased hours if an employee's workday is more than ten hours.

Additionally, part-time and full-time fast food workers throughout New York benefit from New York City's fair workweek laws. Let's explore these in more detail here.

New York predictive scheduling laws give shift workers in the retail, restaurant, and hospitality industries the ability to know in advance which days they are working. This allows them to more easily:

• Arrange for daycare

• Coordinate any scheduling at a second job or with college courses

• Schedule necessary appointments on their days off

Many of these provisions are in the Fair Workweek Law. Here’s a look at how the rules apply to various industries.

New York retail employees

In New York City, retail employees’ rights are protected under New York predictive scheduling laws, which includes provisions such as:

• The right to a work schedule that is given to them by their employer at least 72 hours before the start of their schedule (this schedule must be provided in the way that the employer typically contacts them, such as over email)

• A required posted schedule at the retail business workplace where all employees can see it

• No on-call shifts

• Restrictions on additional work shifts to the schedule without 72 hours' notice

• No shift cancellations within 72 hours of the start of the shift (the only exceptions are for circumstances such as threats to the employee's safety, a public utility failure, a shutdown of public transportation, a natural disaster, or a government-declared state of emergency)

New York hospitality employees

The New York City Fair Workweek Law requires employers in the hospitality industry to provide these accommodations:

• Reasonable estimates of how many hours the employee will work during the week (these estimates must include details of days, times, and locations where the employee will be working)

• Schedules that are distributed at least 14 days in advance, either in writing or digitally

• An update whenever the worker's hours differ from the good faith estimate for three consecutive weeks or at least three of the past six weeks

• Right to rest periods of at least 11 hours between shifts

If employers call in hospitality workers in New York for additional shifts, the employers must provide extra pay.

New York City fast food workers

The Fair Workweek Law in New York City requires applicable employers of fast food and fast-casual chains with more than 30 corporate or franchise locations nationwide to provide the following for food service workers:

• Regular schedules that stay the same from week to week

• Schedules at least 14 days in advance of the start of the schedule

• Employees must receive special provisions for "clopenings," or back-to-back closing and opening shifts. Employers can only schedule clopenings with written consent from the employee. Also, the employer must pay a premium for fewer than 11 hours between the two shifts.

• A premium for short-notice schedule changes

• Employees must have the opportunity to say no to clopenings or shift changes without fear of retaliation

• Existing team members must be allowed to work more hours before new employees are hired

• Employees have protection against being fired or having their work hours reduced by more than 15 percent without just cause or a legitimate business reason

• If hours become available after lay-offs, employers must reinstate employees in order of seniority

Under the advance notice provision of New York predictive scheduling laws, employers must give employees at least 14 days' notice that they are scheduled to work. For example, for the workweek of June 15-22, the employer must provide a schedule to employees by June 1. Covered retail employers cannot change the plan without 72 hours notice.

The law is different regarding new employees, as there is often not enough time between when they are hired and when they begin working to provide a schedule with at least 14 days' notice. Instead, employers must give the new employee a good faith estimate of the number of hours they can expect to work.

Employers must also provide details regarding the specific time and date of scheduled shifts. These details must be provided in writing or digitally. They also must be updated if the employee's hours are different than the good faith estimate for three consecutive weeks, or at least three of the past six weeks. Therefore, managers need to be organized and iron out common scheduling issues.

In New York, the predictive scheduling laws prohibit employers from:

• Changing an employee's schedule with less than 72 hours notice

• Retaliating if employees decline extra hours or "clopenings"

• Reducing the hours of an employee by more than 15 percent without a legitimate business reason

Also, employers can only require an employee to be "on-call" and work outside of the schedule with less than a 72-hour notice if the employee agrees to it. Employers must pay premiums for employees to work a shift with less than a 72-hour notice or two shifts with less than 11 hours between the shifts.

Violating New York's labor laws can result in severe consequences. Along with back-paying employee premiums, employers may face fines imposed by state and city authorities. Some of the potential penalties include:

• Failure to provide or follow a good faith estimate: $200

• Violation of the right to rest rule (which prohibits an employee from starting one shift less than 11 hours after ending another): $500 plus any unpaid $100 premium

• Failure to provide advance notice of a schedule: $200

• Changes to the time and date of the work shift with no changes to hours:

  • $10 per change with less than 14 days' notice

  • $15 per change with less than seven days' notice

  • $15 per change with less than 24 hours' notice

• Adding hours to the schedule:

  • $10 per change with less than 14 days' notice

  • $15 per change with less than seven days' notice

  • $15 per change with less than 24 hours' notice

• Subtracting hours from the schedule:

  • $20 per change with less than 14 days' notice

  • $45 per change with less than seven days' notice

  • $75 per change with less than 24 hours' notice

• Failing to allow existing employees access to available hours before hiring new employees to fill them: $300

In 2017, New York City joined other cities, such as San Francisco, Philadelphia, Chicago, and Seattle, in protecting the rights of employees to have predictability in their work schedules.

These laws protect shift-reliant industries, including retail establishments, hospitality providers, and fast food restaurants. Failure to follow fair workweek laws is unethical and can result in employers paying penalty wages to workers who agree to work additional or non-standard hours.

Employee scheduling software like Hubstaff provides many benefits for NYC employers, including setting specific parameters in scheduling to ensure compliance.

With Hubstaff’s all-in-one workforce management software, it’s easy to start tracking time, use time clock software, follow the rules for hourly employees, and streamline scheduling.

Book a demo with Hubstaff to see the software's full capabilities. You can also take it out for a test drive with a 14-day free trial.