New York City Fair Workweek Law Is Amended

By Douglas Lipsky

On July 18, 2018, New York City’s Temporary Schedule Change amendment to the Fair Workweek Law became effective on July 18, 2018.

Under the Fair Workweek Law, most New York City employers are required to permit a covered employee to make a temporary change to the employee’s work schedule for up to two business days each calendar year to accommodate a “personal event”. Limits exist on the schedule changes: employees are entitled to a schedule change for no more than two business days per year. The law also prohibits retaliation by employers against employees who request temporary schedule changes. Importantly, employees cannot agree to waive their rights under the Temporary Schedule Change Law.

What is a temporary schedule change under the Fair Workweek Law?

A temporary schedule change is an adjustment in the “hours, times or locations an employee is expected to work.” The change may involve using short-term unpaid leave or paid time off, working remotely, or swapping or shifting work hours with a co-worker.

What is a “personal event” under the Fair Workweek Law?

A “personal event” occurs when an employee needs to:

  • Care for a minor child for whom the employee provides direct and ongoing care.
  • Care for an individual with a disability for whom the employee provides direct and ongoing care to meet the needs of daily living and who is a family member or who resides in the caregiver’s household.
  • Attend a legal proceeding or hearing for public benefits for the employee, a family member, or the employee’s minor child or care recipient.
  • Use leave for reasons permitted under NYC’s Paid Safe and Sick Leave Law.

Who are the covered employees under the Fair Workweek Law?

Two conditions must be met to be a covered employee: (1) work at least 80 hours per calendar year in New York City and (2) have been employed by the employer for at least 120 days. But the law does not cover certain employees subject to a collective bargaining agreement. The new law applies to all employers other than certain employers in the entertainment industry.

How to request a schedule change?

An employee may request the temporary schedule change either orally or in writing and must make the request as soon as practicable. While an initial request does not need to be in writing, an employee must make a request in writing within two days after returning to work. An employer must respond to the employee’s initial request immediately, either orally or in writing. Once an employee submits a written request, the employer must provide a written response within 14 days, either granting the request or explaining why it was denied. The response must also inform the employee of how many temporary schedule changes the employee has left for the remainder of the year.

An employer may, however, deny an employee’s temporary schedule change request for two reasons: (1) the employee exceeded the number of allowable requests under the law or (2) the employee did not have a qualifying reason for the request. Even if an employer denies a request, an employer may grant unpaid leave in lieu of an employee’s temporary change request. But employers may not require employees to use paid leave earned under NYC’s Paid Safe and Sick Leave Law for a temporary schedule change.

What must employers do?

The law requires employers to post a “You Have a Right to Temporary Changes to Your Work Schedule” notice in a location visible to employees. Employers must post the notice in English and in any language that is the primary language of at least 5 percent of the employees in the workplace if the translation is available on the New York City Department of Consumer Affairs website.

Employers also must update their handbooks and leave policies to meet or exceed the requirements of the new law, and educate managers and supervisors regarding their obligations under the law.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.