General Provisions

RCNY tit. 6, ch. 7, subch. F, pt. 1

in effect

6 RCNY § 7-601 Definitions.

§ 7-601 Definitions. (a) As used in Title 20, Chapter 12 of the New York City Administrative Code and this subchapter, the following terms have the following meanings, except as otherwise provided: "Accept" when used in reference to a shift or shifts at a fast food establishment means a fast food employee's communication to a fast food employer of their desire to work such shift or shifts in response to the notice of available shifts provided by the fast food employer. "Applied consistently," as that phrase is used in § 20-1272(b)(3) of the Fair Workweek Law, means that fast food employees with similar job duties who are subject to the same progressive discipline policy received comparable treatment under that policy for similar infractions in similar circumstances. "Award" has the same meaning as "distribute," as that term is used in the Fair Workweek Law. When the term "award" is used in reference to a shift at a fast food establishment, it means a fast food employer has added the shift to a fast food employee's regular schedule. "Baseline regular schedule" means the highest total hours contained in a fast food employee's regular schedule within the previous 12 months, or the highest total hours contained in any subsequent reduced regular schedule to which such employee consented, which such employee requested, or which was made for just cause or a bona fide economic reason. "Clopening" means two shifts with fewer than 11 hours between the end of the first shift and the beginning of the second shift when the first shift ends the previous calendar day or spans two calendar days. "Clopening premium" means the $100 payment required for each clopening shift worked pursuant to § 20-1231 of the Fair Workweek Law. "Consent" means an employee's agreement after having a meaningful opportunity to decline, free from any interference, coercion, or risk of adverse action from the employer. "Contact information" means the last-known phone number, email address, and mailing address provided to the employer. "Current fast food employee" as that term is used in § 20-1241 of the Fair Workweek Law and these rules means a fast food employee who has worked at least eight hours in the preceding 30 days or is otherwise currently on the fast food employer's payroll, and has not been terminated from employment. "Directly notify" as that term is used in subdivision (b) of § 20-1252 of the Fair Workweek Law means to deliver to an individual employee. "Engaged primarily in the sale of consumer goods" as that term is used in the definition of "retail employer" in § 20-1201 of the Fair Workweek Law means greater than fifty percent of sale transactions in the City during the previous 12 months were of consumer goods to retail consumers. "Fair Workweek Law" means Chapter 12 of Title 20 of the Administrative Code of the City of New York. "New fast food employee" means an employee who, at the time of hire, has not previously been employed by or worked any hours for the fast food employer or who has no seniority due to an interruption in service of more than six months as set forth in § 20-1271 of the Fair Workweek Law. A "new fast food employee" becomes a "current fast food employee" once they have performed at least 8 hours of work for the fast food employer. "Notice of discharge" means the written explanation that fast food employers are required to provide to discharged fast food employees pursuant to § 20-1272(d) of the Fair Workweek Law. "Offer" when used in reference to a shift or shifts at a fast food establishment means the process by which a fast food employer notifies fast food employees of the availability of such shift or shifts pursuant to § 20-1241 of the Fair Workweek Law. While an "offer" of a particular shift may be made to a number of employees and/or former employees, the shift will be "awarded" to one employee (unless it is divided among two or more employees). "Overtime pay" means payment (i) at a rate not less than one and one-half times the fast food employee's regular rate of pay under subsection (a) of Section 207 of Title 29 of the United States Code; or (ii) at a rate governed by the overtime requirements of the labor law or the overtime requirements of any minimum wage order promulgated by the New York commissioner of labor, pursuant to labor law article 19 or 19-A. "Recurring shift" means a shift that the fast food employer anticipates needing a fast food employee to fill indefinitely. "Regular schedule" means a predictable, regular set of recurring shifts that a fast food employee will work each week. "Relevant and adequate training," as that phrase is used in § 20-1272(b)(2) of the Fair Workweek Law, means instruction on how to perform the job duties, standards of conduct in the fast food establishment, or workplace policies and procedures. This may include training on: preparing and serving food, cleaning, using tools and equipment, handling payments, interacting with customers, and other typical job duties of fast food employees; workplace policies and procedures relating to attendance, punctuality, cooperation, and other standards of conduct required by the fast food employer; and any specific job duties or conduct for which a discharged fast food employee has previously failed to meet the fast food employer's expectations. "Retail consumer" means an individual who buys or leases consumer goods and that individual's co-obligor or surety. Retail consumer shall not include manufacturers, wholesalers, or others who purchase or lease consumer goods for resale as new to others. "Salaried," as that term is used in the definition of "fast food employee" in § 20-1201 of the Fair Workweek Law, means paid on a salary basis and meets all of the criteria for one or more of the exemptions from the minimum wage and overtime provisions of the Fair Labor Standards Act set forth in Title 29, Part 541 of the Code of Federal Regulations. "Scheduling application" means a computer application used by an employer to create or manage employee schedules. "Shift" means an on-call shift or a regular shift. "Subset of shifts" means one or more shifts or shift increments. "Times" as that term is used in relation to any shift or schedule, means start and end times of shifts. (b) As used in this subchapter, the following terms have the same meanings as set forth in §§ 20-1201 and 20-1271 of the Fair Workweek Law: "bona fide economic reason," "department," "discharge," "employee," "employer," "fast food employee," "fast food employer," "fast food establishment," "just cause," "on-call shift," "probation period," "progressive discipline," "reduction in hours," "regular shift," "retail employee," "retail employer," "schedule change premium," "seniority," "utility safety employee," "utility safety employer," and "work schedule." (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-602 Notice of Rights.

§ 7-602 Notice of Rights. The notice of rights required to be posted pursuant to § 20-1205 of the Fair Workweek Law shall be printed on and scaled to fill an 11x17 inch sheet of paper. (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-603 Recordkeeping.

§ 7-603 Recordkeeping. (a) Fast food, retail, and utility safety employers must create and maintain contemporaneous, true, and accurate records documenting compliance with the requirements of the Fair Workweek Law for a period of three years, as specified below. 1. Required records for fast food, retail, and utility safety employers. For fast food, retail, and utility safety employers, such records shall include documents that show: i. Each employee's first and last name, dates of employment and the last-known phone number, email address, and mailing address provided to the employer; ii. Actual hours worked by each employee each week, including the date, times, and location of all such hours; iii. Each work schedule, including the dates, times, and methods by which each work schedule was provided to each employee; and iv. Each agreement among employees to trade shifts, including the shifts being traded and the names of the employees involved. 2. Required records for fast food employers. For fast food employers only, such records also must include documents that show: i. Each regular schedule, including the dates, times, and methods of provision to each employee; ii. Each written request by an employee for a change to a work schedule or for a reduction in hours on the regular schedule, including the date, time, and method of transmission to the employer. iii. Each written consent by a fast food employee to an addition of hours to a work schedule or to a reduction in hours on the regular schedule, including the date and time when the record was made; iv. Each instance a schedule change premium was not owed to a fast food employee due to the fast food employee's lateness or absence, including the date of the shift and the reason; v. Each instance a schedule change premium was not owed to a fast food employee because the employer's operations could not begin or continue as set forth in § 20-1222(c)(1) of the Fair Workweek Law or because the employee received overtime pay for a changed shift, as set forth in § 20-1222(c)(4) of the Fair Workweek Law. vi. Each schedule change premium and each clopening premium paid to each fast food employee, the shift, work week, or pay period to which the premium corresponds, and the date and amount of each payment; vii. Each written request or consent by a fast food employee to work a clopening shift, including the date and time when the record was made; viii. Each regular or on-call shift offered to, accepted by, or awarded to current fast food employees, including the contents of each offer, and the dates, times, and methods by which such shifts were offered, accepted, and awarded. ix. Each instance an employer was not required to offer a shift to a current fast food employee before hiring new fast food employees because the employer would have been required to pay the current fast food employee overtime pay for the additional shift. x. All written policies on progressive discipline maintained in accordance with § 20-1272(c) of the Fair Workweek Law and the date and manner in which they were provided to fast food employees, and proof that such policies were received by each fast food employee; xi. Records of discipline of fast food employees, including to whom the discipline relates, a description of any employment actions associated with the discipline and the dates these actions were taken (for example, application of a disciplinary point, training, increased supervision), the conduct for which the fast food employee was disciplined and any date associated with the conduct, either the fast food employee's acknowledgement of having been informed of the discipline or a supervisor's affirmation that the fast food employee was informed of the discipline and refused to acknowledge it, and the employee's response, if any. xii. Each Notice of Discharge provided to a fast food employee in accordance with § 20-1272(d) of the Fair Workweek law and the date and method by which the Notice of Discharge was provided to the fast food employee. xiii. For each discharge based on a bona fide economic reason, records sufficient to show that the discharge was in response to a reduction in volume of production, sales or profits at the fast food establishment, such as documents showing: (1) The fast food establishment's financial condition, including tax returns, income statements, profit and loss statements, monthly gross revenue schedules, and balance sheets; (2) The fast food establishment's compliance with government-issued capacity reduction orders or health and safety guidelines or a full or partial closure by order of a government official; or (3) The fast food employer's inability to operate due to: (A) Threats to the fast food employees or the fast food employer's property; (B) The failure of a public utility or the shutdown of public transportation; (C) A fire, flood or other natural disaster; (D) A state of emergency declared by the President of the United States, Governor of the state of New York, or Mayor of the City; or (E) Severe weather conditions that posed a threat to employee safety. xiv. For each fast food employee discharged based on a bona fide economic reason, their seniority relative to any other such discharged employees, and each offer of reinstatement or restoration of hours pursuant to §§ 20-1241(a)(1) and 20-1272(h) of the Fair Workweek Law, including the date and the method of contact or attempted contact, the days, times and location of the shift(s) offered, and whether the offer was accepted. 3. Required records for retail and utility safety employers. For retail and utility safety employers only, such records also must include documents that show: i. Each written request by a retail or utility safety employee for time off including the date and time the request was made, and the days and times off requested; ii. Each written consent by a retail or utility safety employee to work with fewer than 72 hours' notice; and iii. Each change to a retail employee's work schedule with less than 72 hours' notice that occurred because the employer's operations could not begin or continue as set forth in § 20-1251(b)(3) of the Fair Workweek Law. iv. Each change to a utility safety employee's work schedule with less than 72 hours' notice that occurred because the utility safety employer was responding to or could not begin or continue operations due to one of the circumstances set forth in § 20-1251(b)(4) of the Fair Workweek Law. (b) Upon request, a fast food, retail, or utility safety employer must provide a fast food, retail, or utility safety employee with such employee's work schedule for any previous week worked for the past three years within 14 days of the employee's request. (c) Upon request, a fast food, retail, or utility safety employer must provide a fast food, retail, or utility safety employee with the most current version of the complete work schedule for all employees who work at the same location within one week of the employee's request, provided that an employer may not disclose the work schedule of any employee who has been granted an accommodation based on the employee's status as a survivor of domestic violence, stalking, or sexual assault, where such disclosure would conflict with such accommodation. (d) A fast food, retail, or utility safety employer may create or maintain any of the records required by this Section in a scheduling application or other electronic recordkeeping system. Such employer must ensure: 1. That such records are maintained and preserved for at least three years; 2. That such records can be readily exported in non-proprietary, machine-readable data formats, as may be needed to meet the obligation to produce such records to the department; 3. That the scheduling application or other electronic recordkeeping system is not subject, in whole or in part, to any agreement or restriction that would, directly or indirectly, compromise or limit the employer's ability to comply with any obligation to produce such records to the department; and 4. That the scheduling application or other electronic recordkeeping system is not configured to overwrite or destroy any of the information required by this section, or that it is supplemented by an alternative system for retaining true and accurate copies of information and records that might otherwise be destroyed or overwritten. (e) To electronically provide a regular schedule or an updated copy of a regular schedule under § 20-1221(a), or to electronically transmit a work schedule or a revised work schedule under §§ 20-1221(c)(1) or 20-1221(c)(2) of the Fair Workweek Law, the electronic communication delivered by the employer must include the days, times, and locations of all shifts in such schedule. (f) To provide a notice of available shifts electronically under § 20-1241(b) of the Fair Workweek Law, the electronic communication delivered by the employer to the employee must include: (i) the contents of the offer, or (ii) an alert that an offer is available and an attachment or a link to where the employee can readily view the contents of the offer. (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-604 Private Right of Action.

§ 7-604 Private Right of Action. (a) A person who filed a complaint with the department pursuant to the Fair Workweek Law and who intends to withdraw the complaint to pursue a civil action shall withdraw the complaint in writing to the department prior to commencing a civil action that includes claims based on the Fair Workweek Law in accordance with paragraph (2) of subdivision (d) of § 20-1211 of the Fair Workweek Law. (b) A person who filed a civil action that includes any claims based on the Fair Workweek Law may file a complaint with the department upon a showing that the Fair Workweek Law claims in the civil action have been withdrawn or dismissed without prejudice to further action. (c) The withdrawal of a complaint filed with the department or the commencement of a civil action by a person does not preclude the department from investigating the fast food, retail, or utility safety employer, or commencing, prosecuting, or settling a case against the employer based on some or all of the same violations. (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-605 Waiver of Rights.

§ 7-605 Waiver of Rights. Any agreement by an employee with the intent to prospectively waive or limit the employee's rights pursuant to the Fair Workweek Law shall be invalid as a matter of law, except as provided in the Fair Workweek Law. (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-606 Consent.

§ 7-606 Consent. (a) When an employer must seek an employee's written consent as set forth in the Fair Workweek Law §§ 20-1221(a) (consent for reduction of hours in regular schedule), 20-1221(d) (consent to work or be available to work for additional hours), 20-1231 (consent to work a clopening), and 20-1251(a)(3) (retail or utility safety employee's consent to work with fewer than 72 hours' notice), the employee must have a meaningful opportunity to decline, free from any interference, coercion, or risk of adverse action from the employer. The record of such employee's written consent must show that the employer obtained it in advance and must reference a specific schedule change or shift; general or ongoing consent is insufficient to meet this requirement. If an employer cannot obtain an employee's written consent before the additional time begins, such as when the schedule change involves an unscheduled addition of time at the end of a shift, the employee's written consent must be obtained no later than 15 minutes after the employee begins to work additional time. (b) An employer is not required to obtain or maintain a written record of an employee's choice to decline to give consent as set forth in §§ 20-1221(a), 20-1221(d), 20-1231, and 20-1251(a)(3) of the Fair Workweek Law. (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-607 De Minimis Schedule Changes.

§ 7-607 De Minimis Schedule Changes. A schedule change of 15 minutes or less is de minimis if neither the start time nor the end time changes by more than 15 minutes. An employer making only a de minimis schedule change is not required to comply with the consent requirements of § 20-1221 or 20-1231, the schedule change premium requirements of § 20-1222, or the schedule change provisions of § 20-1251(a). (Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-133777Fetched: 10/24/2026