§ 7-622 — Schedule Changes

§ 7-622 Schedule Changes.

(a) For purposes of § 20-1222(a) of the Fair Workweek Law, the amount of each schedule change premium owed is based on hours elapsed between the first day on the work schedule, which begins at 12:00 a.m., and the date and time the fast food employer transmits the revised written schedule to the affected employees or re-posts the schedule, as required by § 20-1221(c)(2), whichever is later. The amount of notice to the employee is computed on an hourly basis. "7 days' notice" means at least 168 hours before the first day on the work schedule. "14 days' notice" means at least 336 hours before the first day on the work schedule. Any schedule change the fast food employer makes on or after the day before the first day on the work schedule is a change with less than 24 hours' notice. Any schedule change that is not documented on a revised written schedule provided to the affected employees or re-posted as required by § 20-1221(c)(2) is presumed to be a change made with less than 24 hours' notice. Example 1: The first day on a work schedule is Monday, July 27. The employer posts and emails the work schedule 14 days in advance, on Sunday, July 12 at 10:00 p.m. On Sunday, July 26 at 9:00 a.m., the employer posts and emails the employee a revised schedule cancelling a shift originally scheduled for Thursday, July 30. This is a schedule change made with less than 24 hours' notice from the first day on the work schedule: the revised schedule was posted and emailed 15 hours before the work schedule begins at 12:00 a.m. on Monday, January 27. The employer owes the employee a schedule change premium of $75. Example 2: The first day on work schedule is Monday, July 27. The employer posts and emails the work schedule 14 days in advance, on Sunday, July 12 at 10:00 p.m. The schedule states that a fast food employee is scheduled to work a shift on Thursday, July 30. On Monday, July 20 at 5:00 p.m., the employer posts and emails the employee a revised schedule canceling the Thursday, July 30 shift. This is a schedule change made with less than 7 days' notice from the first day on the work schedule: the revised scheduled was emailed and posted 151 hours (6.2 days) before 12:00 a.m. on Monday, July 27. The employer owes the employee a schedule change premium of $45. Example 3: The first day on a work schedule is Monday, July 27. A fast food employee is scheduled to work a shift on Thursday, July 30. The employer posts and emails the work schedule 14 days in advance, on Sunday, July 12 at 10:00 p.m. On Tuesday, July 14 at 12:00 p.m., the employer posts and emails the employee a revised schedule moving the Thursday, July 30 shift to Friday, July 31. This is a date change with no loss of hours made with less than 14 days' notice but at least 7 days' notice from the first day on the work schedule: the revised schedule was emailed and posted 300 hours (12.5 days) before 12:00 a.m. on Monday, July 27. The employer owes the employee a schedule change premium of $10. Example 4: The first day on a work schedule is Monday, July 27. The employer provides the work schedule 14 days in advance, on Sunday, July 12 at 10:00 p.m. On Wednesday, July 29, the employer sends a fast food employee home 3 hours early from his scheduled shift. The employer does not post and or email the employee a revised schedule, or pay the employee at his regular rate of pay for the 3 hours cut from his shift. This is a schedule change made with less than 24 hours' notice. The employer owes the employee a schedule change premium of $75. Example 5: The first day on a work schedule is Monday, July 27. The employer provides the work schedule 16 days in advance, on Friday, July 10 at 5:00 p.m. On Sunday, July 12 at 10:00 p.m., the employer posts and emails employees a revised schedule on which several employees' start times and end times throughout the week are different. These are schedule changes made with at least 14 days' notice from the first day on the work schedule. The employer does not owe the employees schedule change premium for these schedule changes. (b) A fast food employee who consents to a schedule change, including the addition of a shift awarded to an employee pursuant to § 20-1241(d), does not waive the right to a schedule change premium owed under § 20-1222 of the Fair Workweek Law. A fast food employee's consent to a schedule change does not give rise to any exception to the requirement to pay a schedule change premium. (c) Where there is a discrepancy of more than 15 minutes between (i) a work schedule and an updated work schedule posted less than 14 days before the first day on the schedule or (ii) times a fast food employee worked and the corresponding shift on the last-updated work schedule, and there is no document showing that the employee requested the change or that another exception to schedule change premiums set forth in § 20-1222(c) of the Fair Workweek Law applied, then the fast food employer owes the corresponding schedule change premium. (d) Notwithstanding subdivision c of this section, no schedule change premium is owed under § 20-1222 of the Fair Workweek Law to a fast food employee who is absent from work, including but not limited to arriving late to work, not reporting to work, leaving early without approval, calling out sick or using other leave. In this circumstance, the employee's supervisor may provide documentation of the exception to the requirements of the Fair Workweek Law; documentation created by the employee is not required. (e) Unless another exception to schedule change premiums set forth in § 20-1222(c) of the Fair Workweek Law applies, pursuant to § 20-1222(c)(2) of the Fair Workweek Law there is no exception to the requirement to pay a schedule change premium to a fast food employee for a schedule change made with less than 14 days' advance notice for a change that the fast food employee has not requested, including when: 1. A fast food employee continues to perform work for more than 15 minutes past the end of the scheduled shift; 2. A fast food employer makes a change to the work schedule that the fast food employee did not request; 3. A fast food employer asks a fast food employee to come to work more than 15 minutes early for a scheduled shift or to work an additional unscheduled shift; 4. A fast food employer asks a fast food employee to leave work more than 15 minutes early; 5. A fast food employer asks a fast food employee to fill in for another employee; 6. A fast food employer seeks volunteers to work more or less time and a fast food employee then volunteers to work more or less time; 7. A fast food employee picks up an open shift that a fast food employer posted in a scheduling application, provided that the shift is not subject to the exception for voluntary trades described in subdivision (h) of 6 RCNY § 7-622; or 8. A fast food employer terminates a fast food employee's employment for any reason, as provided in § 20-1274 of the Fair Workweek Law. (f) A fast food employee's acceptance of an offer of available shifts pursuant to § 20-1241(c) of the Fair Workweek Law is not a fast food employee's request for a schedule change, as provided in § 20-1241(e). (g) A fast food employer does not owe premium pay under § 20-1222(a)(2), 20-1222(a)(4), or 20-1222(a)(5) of the Fair Workweek Law for subtracting hours from a shift or cancelling a shift if the fast food employer (i) pays the fast food employee for all work hours in the regular shift or on-call shift in the work schedule prior to the change, without drawing down any bank of paid leave available to the fast food employee, and (ii) maintains a record reflecting the date and time of the scheduled hours that were paid but not worked. Example: A fast food employee, Haley, is scheduled to work on Monday, April 4 from 10:00 a.m. to 4:00 p.m., a 6-hour shift. When business is slow that day, Haley's manager changes Haley's schedule with less than 24 hours' notice by asking Haley to leave at 3:00 p.m. The fast food employer pays Haley for 6 hours of work for Monday, April 4, even though she only worked 5 hours, and maintains a record indicating that compensation she received for one hour on Monday, April 4 was for time in the scheduled shift not worked for Fair Workweek compliance purposes. Haley's employer does not owe her a $75 premium payment for the schedule change on Monday, April 4. (h) A fast food employer does not owe premium pay under § 20-1222(c)(3) when two fast food employees voluntarily trade shifts with one another. This exception also applies when a fast food employee posts or "drops" a scheduled shift that they do not wish to work in a scheduling application, and another fast food employee "picks up" the shift. (i) Documentation of a fast food employee's written request for a schedule change or a shift trade must reference a specific schedule change or shift and the date the request or trade was made. When the schedule change involves an addition of time, a schedule change premium is owed unless the documentation shows that the fast food employee requested the additional time in writing before the employee began to work the additional time. (j) When a fast food employer does not provide an employee a work schedule at least 14 days before the first day of a work week, as required by § 20-1221(b) of the Fair Workweek Law, the employee's work schedule for that work week shall be the employee's regular schedule. 1. The employer is not required to pay a schedule change premium as long as there is no variation between the shifts on the work schedule and the shifts on the employee's regular schedule. 2. If the employer subsequently posts or transmits a revised work schedule, the employer must pay the employee a schedule change premium for each schedule change, consistent with the requirements set forth in § 20-1222 of the Fair Workweek Law and subdivision (a) of 6 RCNY § 7-622. 3. If the employer has not provided the employee a regular schedule, in violation of § 20-1221(a) of the Fair Workweek Law, and also has not provided the employee a work schedule at least 14 days before the first day of a work week, in violation of § 20-1221(b) of the Fair Workweek Law, then the employer must pay the employee a schedule change premium for each regular shift or on-call shift that it subsequently adds to the work schedule for that work week. Example 1: Brandon's regular schedule provides that he works on Mondays, Tuesdays, Wednesdays, and Saturdays from 6:00 a.m. to 2:00 p.m. His employer's workweek begins on Monday, November 22. The deadline to post the work schedule is 12:00 a.m. on Monday, November 8 (14 days before November 22). The employer posts and electronically transmits the work schedule for the work week beginning November 22 on Tuesday, November 9 at 5:00 p.m. The work schedule matches the regular schedule, except Brandon is scheduled to start work at 9:00 a.m. on Tuesday, November 23. The fast food employer owes Brandon a $20 schedule change premium for the subtraction of hours. Example 2: A fast food employer has never given Jimmy a regular schedule. The fast food employer usually posts the work schedule each week six days before the first day on the schedule, on which Jimmy is unpredictably scheduled to work anywhere from two to six shifts per week. The fast food employer owes Jimmy a schedule change premium of $15 for each shift on each of Jimmy's work schedules, in addition to other relief as set forth in the Fair Workweek Law. (k) For any pay period in which a fast food employee was paid schedule change premiums, the number of schedule change premiums paid and each premium amount must be included on the wage stub or other written documentation provided to the employee. (Added City Record 5/24/2022, eff. 6/23/2022)