Fast Food

RCNY tit. 6, ch. 7, subch. F, pt. 2

in effect

6 RCNY § 7-620 Regular Scheduling.

§ 7-620 Regular Scheduling. (a) The requirement for a regular schedule is intended to provide a fast food employee with long-term scheduling predictability. The requirement to provide a "regular schedule" is separate and distinct from the requirement to post and transmit "work schedules" setting forth specific work shifts on specific dates. A regular schedule should set forth a fast food employer's actual expectation of a fast food employee's long-term schedule. An employer must update the regular schedule regular schedule in writing to document any long-term or indefinite change to any recurring shift on it, and must provide a copy to the employee. (b) A fast food employer must at all times have a regular schedule in effect for each fast food employee employed or hired on or after July 4, 2021. Each regular schedule provided by a fast food employer must include the date such regular schedule takes effect. (c) A regular schedule provided to a fast food employee is considered to be in effect unless and until a new regular schedule is provided to the employee. (d) Reserved. (e) A fast food employer's failure to provide a regular schedule to a fast food employee is a violation of § 20-1221(b) of the Fair Workweek Law for each week the employee works until a regular schedule is provided. (f) 1. A fast food employer may, but is not required to, have a policy or practice of collecting information from fast food employees about the hours they are available or unavailable to work, and using such information for scheduling purposes. A fast food employer may, but is not required to, have a policy or practice of requiring fast food employees to be available for a minimum number of hours per week, so long as such policy or practice is applied consistently and in a nondiscriminatory manner. 2. If a fast food employer does have a policy or practice of collecting information about fast food employees' availability to work for use in scheduling, and a fast food employee has informed the employer, in a manner complying with the fast food employer's policy or practice, that they are unavailable to work at specified times, the fast food employer may not add or change a recurring shift on an the fast food employee's regular schedule to a shift time that the fast food employee has specified they are unavailable to work, unless the fast food employee consents to the addition or change in writing as provided in § 20-1221(a) of the Fair Workweek Law. Without the fast food employee's written consent, the fast food employer's action would constitute a constructive discharge. 3. If a fast food employee provides a fast food employer written notice that they are no longer available to work all or part of a shift on their regular schedule, that constitutes such fast food employee's written consent to a reduction in hours on the regular schedule corresponding to that shift. In this scenario, the fast food employer has discretion to remove the entire recurring shift, or just the conflicting portion of it, from the regular schedule. Example 1: A fast food employer's employee handbook provides that fast food employees must provide at least 30 days' notice of a change in availability. The fast food employer gives fast food employee Martha a regular schedule that includes 27 hours per week. After two months, Martha informs her employer in writing that starting in six weeks, she will no longer be able to work one 5-hour recurring shift on Tuesday evenings due to a conflict with a college class. Martha also requests that her employer assign her a new recurring shift to keep her total hours at 27. Her employer gives her an updated regular work schedule reflecting the removal of the recurring Tuesday evening shift, with 22 total work hours, but does not add another shift to keep her total work hours at 27. Martha's baseline regular schedule is 22 hours because she requested the reduction. The employer is not required to accommodate Martha's request for a new morning recurring shift. Example 2: In the above scenario, after one month, Martha sees a six-hour recurring shift recurring shift on Saturdays on her employer's notice of available shifts. She accepts it and her employer awards it to her by placing it on her regular schedule. Martha's baseline regular schedule is now 28 hours. Example 3: In the above scenarios, after a month, Martha's employer removes the 6-hour Saturday recurring shift from Martha's regular schedule and places a new recurring shift of the same length on her for Tuesday evenings. The employer has violated the Fair Workweek Law by scheduling Martha to work a shift outside of the availability she provided in accordance with her employer's policies. In addition, the employer's removal of the Saturday shift has reduced Martha's hours by 21%. Unless the employer had a bona fide economic reason, this is a discharge in violation of the Fair Workweek Law, since it has reduced her hours by more than 15% (note that "discharges" are defined in § 20-1271 of the Fair Workweek Law to include "reductions in hours," which are in turn defined as "a reduction totaling at least 15 percent of the employee's regular schedule or 15 percent of any weekly work schedule"). Example 4: In the above scenarios, Martha's employer does not remove the Saturday recurring shift from her schedule but does place a new Tuesday evening recurring shift on her schedule. Martha's employer has violated the Fair Workweek Law by scheduling Martha to work a shift outside of the availability she provided in accordance with her employer's policies. If Martha does not work the newly scheduled Tuesday evening recurring shift, her employer cannot rely on her absence to support a purported just cause discharge under § 20-1272. Example 5: Martha informs her employer that she will not be available to work for the next 28 days, effective immediately. Assuming Martha is not taking leave that is protected under any provision of federal, state, or local law, Martha's employer has a variety of lawful responses. For example, the employer may issue progressive discipline to Martha for changing her hours of availability with less than 30 days' notice, and/or for not working shifts on her work schedule, as long as issuing such discipline is consistent with the employer's progressive discipline policy. The employer may also assign her shifts on a temporary basis to other employees. Unless she is terminated in a manner consistent with the provisions of §§ 20-1271 and 20-1272 of the Fair Workweek Law, or unless her leave is protected by another category of law, Martha retains her status as a "current fast food employee" until she quits, or she has failed to work at least 8 hours in a 30 day period. Example 6: Martha's co-worker, Fran, who currently works Mondays, Tuesdays, and Fridays, informs her employer that in five weeks she will only be available to work on Saturdays. Her employer removes all recurring shifts from Fran's regular schedule effective as of the date of her unavailability. Fran's baseline regular schedule is now zero hours. Over the next month, Fran does not accept any recurring shifts on her employer's notice of available shifts. After 30 days, Fran is considered to have quit her job, as discussed in 6 RCNY § 7-630. She is no longer a "current fast food employee" because she has not worked at least 8 hours in the previous 30 days. (g) Subject to the provisions of subdivision (f) of 6 RCNY § 7-620 concerning employee availability, a fast food employer can change a fast food employee's regular schedule for any reason without their consent, so long as a fast food employer does not reduce the total hours in a fast food employee's regular schedule by more than 15% from the baseline regular schedule, and so long as the employer provides the employee with an updated copy of the regular schedule at least 14 days before the first day on the first work schedule following the change. Example 1: A fast food employer gives fast food employee Rebecca a regular schedule totaling 25 hours per week. After a month, Rebecca's employer gives her a new regular schedule totaling 23 hours per week, a reduction of 8%. Rebecca did not request this reduction, and she does not want it because it reduces her income. However, Rebecca's employer was not required to obtain her consent because the reduction was less than 15%. Rebecca's baseline regular schedule remains at 25 hours because she did not request or consent to the change. Example 2: In the above scenario, after two months, Rebecca's employer gives her a new regular schedule totaling 21 hours per week, and does not give her a notice of discharge indicating the discharge was for a bona fide economic reason or just cause. Rebecca did not request this reduction, and she is unhappy about it. There is a violation of the Fair Workweek Law because the employer has reduced Rebecca's regular schedule by 16% (25 hours to 21 hours) without her consent. Rebecca's baseline regular schedule remains at 25 hours because she did not request or consent to the change. Note that in either of the above examples, the outcome is the same if Rebecca's employer instructed her that she had to sign a form consenting to the reductions, and Rebecca did so. Rebecca's signature would not reflect her consent because she did not want the reductions and was not free to decline them. Example 3: Fast food employee Carlos has given his fast food employer open availability for 7 days a week. Carlos' employer gives him a regular schedule totaling 24 hours a week, containing the following recurring shifts: Mondays and Tuesdays from 6:00 a.m. to 12:00 p.m., Wednesdays from 7:00 a.m. to 12:00 p.m., and Fridays from 5:00 a.m. to 12:00 p.m. After three months, Carlos' employer gives him a new regular schedule totaling 35 hours per week, containing the following recurring shifts in afternoons and evenings: Tuesdays and Wednesdays from 12:00 p.m. to 10:00 p.m., Fridays from 4:00 p.m. to 12:00 a.m., and Saturdays from 5:00 p.m. to 12:00 a.m. Carlos received the new regular schedule by email on Sunday, November 7. Carlos also received a work schedule by email on Sunday, November 7 for the workweek beginning Monday, November 22 that contained shifts consistent with the new regular schedule. Carlos did not request these changes, and he is unhappy about them because although he provided open availability, he preferred to work in the morning. There is no violation of the Fair Workweek Law because the employer is not required to obtain Carlos' request or consent to changes to the regular schedule that do not reduce his total work time by more than 15%, and the employer gave Carlos the updated regular schedule and the first work schedule reflecting the change 14 days before the first day on the work schedule. Carlos' baseline regular schedule is now 35 hours. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-621 Work Schedules.

§ 7-621 Work Schedules. (a) For purposes of the requirement to provide notice of the work schedule no later than 14 days before the first day of any new schedule in § 20-1221(b) of the Fair Workweek Law, the first day of the work schedule begins at 12:00 a.m. "14 days" means at least 336 hours before the first day on the work schedule. Each shift in each work schedule provided to a fast food employee must include a date, location, and the start time and end time. (b) For purposes of § 20-1221(b) of the Fair Workweek Law, variation in shifts between the regular schedule and a work schedule refers to changes to the day of the shift, the start or end times of a shift, the removal of a shift, or the addition of any shift not included on the regular schedule. A variation of more than 15% refers to the entire regular schedule and not to changes of more than 15% to individual shifts on the regular schedule. (c) It shall not be considered a variation from the regular schedule for purposes of § 20-1221(b) when: (1) a fast food employer obtained a fast food employee's written request for or written consent to a change before issuing a work schedule or revised work schedule reflecting the change, or (2) a fast food employer's operations are closed at the location of a shift on the fast food employee's regular schedule due to a scheduled holiday or one of the exigent circumstances set forth in § 20-1222(c) of the Fair Workweek Law. Nothing in this subdivision impacts a fast food employer's obligation to pay premium pay as required under § 20-1222 of the Fair Workweek Law or 6 RCNY § 7-622. (d) A fast food employer is not required to provide a work schedule to a fast food employee for any workweek that the fast food employee is on leave for the entirety of the period covered by the work schedule. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 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)

6 RCNY § 7-623 Clopenings.

§ 7-623 Clopenings. (a) A fast food employer's failure to pay a fast food employee the required $100 premium for working a clopening and a fast food employer's failure to obtain a fast food employee's written consent to work a clopening shall each constitute a separate violation of § 20-1231 of the Fair Workweek Law. (b) For any pay period in which a fast food employee earned clopening premiums, the number of premiums paid and their amounts must be separately noted on the wage stub or other written form of documentation provided to the employee for that pay period. (c) If a fast food employee consents to work an unscheduled clopening, the fast food employer must obtain the employee's written consent at least 11 hours before the start of the second shift of the clopening. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-624 Offering Shifts to Fast Food Employees.

§ 7-624 Offering Shifts to Fast Food Employees. (a) The provisions of § 20-1241 of the Fair Work Week Law only apply when a fast food employer is contemplating the hiring of a new fast food employee. A fast food employer is not required to follow any of the requirements of § 20-1241 to fill any available shift unless it hires, or anticipates hiring, a new fast food employee to fill the shift. (b) When a shift is available, the employer may award it to any current fast food employee, in any non-discriminatory way the employer chooses, without publicizing the availability of the shift to current fast food employees and without offering it to employees who have been discharged for bona fide economic reasons, as long as the employer does not hire, or anticipate hiring, a new fast food employee to fill the shift. (c) When a shift is available, the fast food employer may not hire a new fast food employee to fill it, unless: (i) the employer has first made reasonable efforts to offer reinstatement or restoration of hours to any employees who have been discharged for bona fide economic reasons within the past 365 days, in accordance with 6 RCNY § 7-629 of this chapter, and (ii) if the position has not been awarded to such a discharged employee, the employer has offered the shift to current fast food employees in accordance with §§ 20-1241(a)(2) and 20-1241(b) of the Fair Workweek Law by posting a notice of available shifts in the workplace and providing it to each current fast food employee electronically. If the fast food employer has followed these steps and no current fast food employee has accepted the offer, then the fast food employer may hire a new fast food employee to fill the shift. (d) For purposes of § 20-1241(b) of the Fair Workweek Law and 6 RCNY §§ 7-603, 7-624, and 7-629, a shift becomes available any time a fast food employer decides to schedule a fast food employee to work the shift. It does not matter whether the shift is a newly-created shift or one that another fast food employee was previously scheduled to work. (e) When a fast food employer is required to give notice of an available shift, the employer must include in the notice of available shifts the following information for each shift offered: 1. Location. 2. Start time. 3. End time. 4. Whether the shift is a temporary shift or recurring shift. If the shift is temporary, the notice must state the specific dates for which coverage is needed. 5. The number of employees needed to cover the shift. 6. How the employee should tell the employer that they want to pick up the shift and the deadline for doing so. 7. The criteria the employer will apply to distribute the shift, if multiple employees express interest. 8. A statement that priority will be given to employees who already work at the location where the shift is available. (f) The fast food employer must post the notice of available shifts for at least three consecutive calendar days when it contains recurring shifts. Pursuant to § 20-1241(f) of the Fair Workweek Law, the fast food employer may post a notice of available shifts for a shift that is less than three days away for fewer than three days. (g) Pursuant to § 20-1241(a) and (d) of the Fair Workweek Law, if the fast food employer is not required to award an available shift to a discharged employee who has accepted the shift, the fast food employer must award an available shift to a current fast food employee who has accepted the shift and already works at the location where the shift will be worked. If multiple current fast food employees from that location have accepted the shifts, the fast food employer must follow its own distribution criteria as described in the notice of available shifts to make the award. If no current fast food employee from that location has accepted the shifts, then pursuant to § 20-1241(f) of the Fair Workweek Law the employer may award the shift to any current fast food employee from another location who accepted the shift. 1. An employer must award a recurring shift by placing the recurring shift on the fast food employee's updated regular schedule and timely transmitting it to the fast food employee. 2. An employer must award a temporary shift by updating the relevant work schedule and complying with the posting and transmission requirements for updated work schedules. 3. In scenario 1 or 2, above, if the fast food employee receives an award of a shift less than 14 days before the first day on the corresponding work schedule and then works the shift, the fast food employer must pay the fast food employee a schedule change premium, as provided in § 20-1241(e) of the Fair Workweek Law. 4. If no current fast food employee has accepted the shifts, then the employer may hire a new fast food employee to work the shift. (h) A fast food employer may only hire a new fast food employee or place a recurring shift on a new fast food employee's regular schedule if, after the employer's offering the same shift as a recurring shift to discharged employees in accordance with 6 RCNY § 7-629 and to current fast food employees for at least three days in accordance with § 20-1241(b) of the Fair Workweek Law, no discharged employee or current fast food employee has accepted it. In the following examples, no employees have been discharged for bona fide economic reasons within the past year. The employer anticipates hiring a new fast food employee, but is required to first offer the available shifts to current fast food employees. Example 1: On its notice of available shifts, a fast food employer posts and emails recurring shift s for hours from 4:00 p.m. to 12:00 a.m. on Friday, Saturday, and Sunday nights. No current fast food employee accepts any of the recurring shifts. The fast food employer hires a new fast food employee and places on his regular schedule recurring shifts from 4:00 p.m. to 12:00 a.m. on Friday, Saturday and Sunday nights. The fast food employer has complied with the Fair Workweek Law by offering the shifts to current fast food employees, and after none were accepted, hiring a new fast food employee to perform the work described in the notice. On occasion, the employer also schedules the fast food employee just hired (whose status has changed from "new fast food employee" to "current fast food employee" because they have now worked for 8 hours) to fill shifts during the day or on other evenings, to meet increased demand or fill in for absent employees. The employer pays premiums to the employee for accepting these shifts, when required by § 20-1222 of the Fair Workweek Law. This also complies with the Fair Workweek Law. Example 2: On its notice of available shifts, a fast food employer posts recurring shifts for hours from 4:00 p.m. to 12:00 a.m. on Friday, Saturday, and Sunday nights. No current fast food employee accepts any of the recurring shifts. The fast food employer hires a new fast food employee and places on his regular schedule recurring shifts from 9:00 a.m. to 2:00 p.m. on Fridays, Saturdays, and Sundays instead of the hours described in the notice. The employer has not complied with the Fair Workweek Law because the hours in the notice do not match the hours actually assigned to the new fast food employee and the new fast food employee is assigned hours that were not previously offered to current fast food employees. The employer has also failed to email the notice of available shifts to all current fast food employees. Example 3: On its notice of available shifts, a fast food employer posts and emails recurring shifts for hours from 4:00 p.m. to 12:00 a.m. on Friday, Saturday, and Sunday nights. No current fast food employee accepts any of the recurring shifts. The employer hires three new fast food employees: Amalia, Brandon, and Christina. The employer places on Amalia's regular schedule recurring shifts from 4:00 p.m. to 12:00 a.m. on Friday, Saturday and Sunday. The employer places on Brandon's and Christina's regular schedule s recurring shift s from 9:00 a.m. to 2:00 p.m. on Fridays, Saturdays, and Sundays instead of the hours described in the notice. The assignment of shifts to Brandon and Christina violates the Fair Workweek Law because they are not performing the work described in the notice and their regular schedules contain recurring shift s that were not previously offered to current fast food employees. Example 4: On its notice of available shifts, a fast food employer posts and emails current fast food employees about temporary shifts available on specific dates that current fast food employees have left vacant on the schedule due to call-outs or terminations from employment. The fast food employer hires three new fast food employees and on their first day of work provides them regular schedules containing recurring shifts that were identified as temporary in the notice of available shifts. The hiring of each new fast food employee violates the Fair Workweek Law because their regular schedules contain recurring shifts that were not previously offered to current fast food employees. (i) There is an instance of a violation of § 20-1241 of the Fair Workweek Law for each shift that a fast food employer assigns or awards to a new fast food employee without first offering the shift as required by § 20-1241 of the Fair Workweek Law. Monetary relief for each violation as provided in § 20-1208(a)(3)(e) shall be equitably distributed among the fast food employees who should have received offers of shifts. (j) The department or a court may grant compensatory damages for violations of § 20-1241 of the Fair Workweek Law pursuant to § 20-1208(a)(1) (administrative remedies) and § 20-1211(a)(5) (private cause of action). Compensatory damages may include the wages current fast food employees did not have an opportunity to earn due to the fast food employer's failure to comply with § 20-1241 of the Fair Workweek Law. (k) A fast food employer is not required to offer or award available shifts to a current fast food employee who is on a leave of absence, unless the current fast food employee is scheduled to return to work within 14 days of the date of the offer. (l) A fast food employer that owns 50 or more fast food establishments in New York City may choose to make offers of shifts required by subdivisions (a), (b), (f) and (g) of § 20-1241 and in compliance with subdivisions (d) and (e) of this section only to fast food employees at its fast food establishments in the same borough as the location of the available shifts. (m) When a fast food employer is required to provide current fast food employees notice of an available shift, the employer must first award shifts to current fast food employees of the location where the shifts will be worked. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-625 Probation Period.

§ 7-625 Probation Period. The number of days in a fast food employee's probation period shall be determined based on the number of calendar days that have elapsed since the employee's first day of employment. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-626 Progressive Discipline.

§ 7-626 Progressive Discipline. (a) A fast food employer must maintain a written policy on progressive discipline that meets or exceeds the requirements of the Fair Workweek Law and this subchapter and must follow such written policy, except in cases of egregious failure by the fast food employee to perform their job duties or in cases of egregious misconduct. A fast food employer's progressive discipline policy must include either the accrual of disciplinary points, strikes, or some comparable system of graduated discipline for subsequent infractions. (b) A fast food employer must inform a fast food employee to whom progressive discipline is being applied in writing of the conduct for which the fast food employee is being disciplined and the consequence, if any, and must give the fast food employee an opportunity to respond. (c) A fast food employer must distribute its written policy on progressive discipline to fast food employees by a method that reasonably ensures personal receipt upon commencement of employment, within 14 calendar days of the effective date of any changes to the policy, and upon request by the fast food employee. (d) Upon request by a fast food employee, a fast food employer must provide the fast food employee with a copy of any discipline issued to the employee within the previous 365 days. (e) If an employer issues a regular schedule or work schedule that violates a provision of the Fair Workweek Law, the fast food employer may not discipline or discharge the employee based on the employee's noncompliance with the portions of the that regular schedule or work schedule that violate the Fair Workweek Law. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-627 Egregious Conduct.

§ 7-627 Egregious Conduct. (a) A fast food employer may discharge a fast food employee for an egregious failure to perform their duties or for egregious misconduct without utilizing progressive discipline. (b) An egregious failure by the employee to perform their duties means an employee's willful refusal to perform work for the majority of time on a shift. (c) Egregious misconduct means workplace conduct that is so outrageous, dangerous, or illegal that an employer cannot reasonably expect to correct it through progressive discipline. Depending on the circumstances, examples may include violence or threats of violence, theft, sexual harassment, race discrimination, or willful destruction of property. (d) An employee's lateness or failure to appear for a scheduled work shift is not an egregious failure to perform job duties or egregious misconduct. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-628 Notice of Discharge.

§ 7-628 Notice of Discharge. (a) The Notice of Discharge provided to a fast food employee must contain the following information: 1. The date of discharge; 2. Whether the discharge was for just cause or a bona fide economic reason; 3. The precise reason(s) the fast food employee was discharged. If the discharge was for just cause, the fast food employer must also itemize each disciplinary step taken and the dates of such discipline, unless the discharge was for egregious conduct as set forth in 6 RCNY § 7-627; 4. If the discharge was for a bona fide economic reason, a statement informing the employee of the right to reinstatement or restoration of hours if shifts become available, the procedure the employer will follow for offering shifts to the employee, including whether the employee will be contacted by phone, text, or email; the last-known phone number and email address on file; and how the employee may inform the employer of updates; and 5. The date the Notice of Discharge is issued. (b) The Notice of Discharge must be provided to the discharged fast food employee by email, except that if the discharged fast food employee does not have an operational email address, the Notice of Discharge must be mailed to the fast food employee's most up to date mailing address known to the employer using trackable mail. (c) If a discharge is based on a bona fide economic reason, the fast food employer must request updated contact information from the fast food employee at the same time that it issues the Notice of Discharge. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-629 Bona Fide Economic Discharges.

§ 7-629 Bona Fide Economic Discharges. (a) A fast food employer that has discharged a fast food employee based on a bona fide economic reason within the previous 365 days must make reasonable efforts to offer such employee reinstatement or restoration of hours before the fast food employer may offer recurring shifts to current fast food employees or hire any new fast food employees in accordance with 6 RCNY § 7-624. A fast food employer is not required to offer temporary (i.e. not recurring shifts) to discharged fast food employees unless no current fast food employee has accepted the shifts and the employer would otherwise hire a new fast food employee to fill them. (b) A fast food employer must contact eligible discharged employees by email, text, or phone and using the most updated contact information provided by the discharged employee, and must disclose to employees the procedures and contact information it will use in the Notice of Discharge, as discussed in 6 RCNY § 7-628(a)(4). Regardless of the method used, or the number of employees contacted, discharged employees with the most seniority have priority for reinstatement or restoration of hours. Eligible discharged employees shall have seven days to accept an offer of reinstatement or restoration of hours made in accordance with this section. Example: A fast food employer with four locations in New York City, Location A, Location B, Location C, and Location D, closes Location D because sales have been declining. The fast food employer discharges all ten employees at Location D. In the Notice of Discharge, the employer informs each of the ten employees that they will all be informed by email of available shifts at Locations A, B, and C for the next 12 months, and that the employee with the most seniority will have priority to receive any shift awards. Two months later, the fast food employer has several recurring shifts to fill at Location A. The fast food employer emails all employees discharged from Location D. After 7 days, two discharged employees respond requesting all of the available recurring shifts. The employer must award the shifts to the discharged employee with the most seniority. (c) When a fast food employer is required to notify eligible discharged employees of the recurring shifts being offered, the notice must include the days, times and locations that the shifts will occur; how the fast food employee may notify the fast food employer of their acceptance of the shifts; that the fast food employee has seven days to accept any of the shifts, and, if the same shift is being offered to more than one eligible employee, that the shift will be awarded to the most senior former employee who accepts any of the shifts. (d) A fast food employer is not required to offer reinstatement or restoration of hours to an employee discharged based on a bona fide economic reason when: 1. the employee was discharged more than 365 days prior, 2. the employee has notified the fast food employer in writing that the employee does not want to receive offers of reinstatement or restoration of hours, 3. the hours would be on specific days or times or at locations that the fast food employee has informed the employer that they are not available to work, 4. the employee has not provided updated contact information and their telephone number and email address on file are no longer operational, 5. the employee has been reinstated to or had hours restored to no less than 85% of the baseline regular schedule they worked immediately prior to the discharge, or) 6. the employee has turned down an offer of reinstatement or restoration of hours to the same regular schedule at the same location that they worked immediately prior to the discharge. (e) A fast food employer may not condition reinstatement or restoration of hours on a fast food employee's ability to return to work or work the additional hours less than 14 days from the date of the offer. If the fast food employer has a need to fill such shifts temporarily before the discharged fast food employee can begin work, the fast food employer may schedule a current fast food employee to work the shift. Example: In September 2021, the fast food employee at a fast food restaurant location with the least seniority, Christina, was terminated due to a documented reduction in volume of sales. No other fast food employee was discharged. Christina's last regular schedule before her discharge provided that she worked 32 hours per week. In December 2021, two six-hour recurring shifts became available, and the fast food employer offered them to Christina and current employees at her location who were not discharged. Christina accepted the available shifts, as did two other current employees. The employer properly awarded both shifts to Christina, in compliance with the requirement that discharged employees have priority over current employees for awards of available shifts. Thereafter, Christina's regular schedule contained 12 hours. In January 2022, two additional six-hour recurring shifts became available. The fast food employer again offered them to Christina and current employees at her location who were not discharged. Both Christina and one other current employee accepted the shifts. Because Christina's hours were not yet restored to at least 85% of the 32-hour baseline regular schedule she worked before her discharge, the fast food employer was required to award both available recurring shifts to Christina. (Added City Record 5/24/2022, eff. 6/23/2022)

6 RCNY § 7-630 Circumstances That Are Not a Discharge.

§ 7-630 Circumstances That Are Not a Discharge. (a) When an employee quits under circumstances that do not constitute a constructive discharge, there has not been a discharge for purposes of § 20-1272 of the Fair Workweek law. (b) When a fast food employee requests or consents to a reduction in hours in advance, it is not a discharge for purposes of § 20-1272 of the Fair Workweek Law. (Added 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/0-0-0-133836Fetched: 10/24/2026