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Paul Zimmerman

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Temporary Schedule Changes in NYC

Work schedules in New York City may be a bit in flux all thanks to the Fair Workweek Law. Pursuant to the new law, employers must grant eligible employees two schedule changes per year (one business day per request or two business days total by way of one request) to attend to qualifying “personal events.”

This begs a couple of questions; first, what types of personal events qualify for schedule changes? The law specifies the following:

  • The need to care for a child or a disabled family or household member who relies on the employee for care or assistance with daily living;
  • Attendance for a legal proceeding or hearing regarding public benefits; or
  • Any reason that would qualify for leave under NYC’s sick and safe time leave.

Question number two is equally important: are all employees entitled to the schedule change benefit? The answer to this query is no, only employees who have worked more than 80 hours in a calendar year can seek schedule changes, so long as they’ve also been employed by their employers for at least 120 days. Of note, the Fair Workweek Law doesn’t apply to employees subject to a collective bargaining agreement, or to certain workers in the entertainment industry. 

What NYC Employers Need to Know

The nuts and bolts of the law are fairly straightforward. To begin, virtually every type of schedule change is permitted, be it a request to change hours or days, to work remotely, or even to swap shifts. That being said, employees can request up to two schedule changes orally (no documentation or proof of the personal event is required), and their employers must immediately grant or deny any request. Employees can initially make their requests orally, but must put them in writing as soon as practicable (but no later than the second business day after they return to work). For their part, an employer must respond in writing no later than 14 days after receiving an employee’s written request, which response must include:

  • Whether the employer agrees to the temporary change in the manner requested by the employee or will provide the temporary change as leave without pay;
  •  An explanation for the denial if the request is denied; and
  •  How many requests the employer has left in the calendar year.

Finally, employers must post a “You Have a Right to Temporary Changes to Your Work Schedule” notice in a location visible to employees.

Employers have very little room to deny or modify requests for schedule changes. In fact, they can only be denied if an employee has already exhausted the two permitted requests in a calendar year, or has worked less than the allotted time mandated under the statute (e.g., 80 hours in a calendar year and a minimum of 120 days in the aggregate). When it comes to modification, an employer can only adjust a request by granting a schedule change for two business days where only one was requested, in which case the employer need not grant a second request. Significantly, employers who fail to abide by the Fair Workweek Law do so at their peril: they face a penalty of $500 for a first violation, and up to $1,000 for subsequent violations within a two-year period.

A less noticeable – but as important – mandate of the law requires an employer to allow, or (at the very least) consider, other schedule changes requested by an employee beyond the two that must be granted. To be clear, the Fair Workweek Law permits employers to either grant or deny these additional change requests. Still, employees are permitted to ask for them without repercussion, and if they do, employees and employers are required to follow the notice procedure outlined above (e.g., an employee’s written request to be provided no more than two business days following a return to work, and the employer’s timely written response).

What Do Employees Give Up in Exchange for Their Requests?

In a word, nothing. Employees requesting schedule changes need not use any accrued sick or safe leave. Indeed, if an employee requests a schedule change and subsequently has his or her hours cut, or if any other action is taken that can be deemed retaliatory, the employer not only faces a $2,500 fine, but may also be required to reimburse the employee for any lost wages or benefits, restore hours and remove any written warning from his or her personnel file. Likewise, the employer could be subject to additional damages.

The Takeaway

In the wake of the temporary schedule change provisions of the Fair Workweek Law, employers should prepare for more frequent schedule changes, which could cause disruptions in operations. Toward that end, they may want to build into their planning available backup workers, and revise any scheduling policies that are contrary to the new law.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.