New York Predictive Scheduling Laws

A clear, flexible work schedule makes life easy for managers, employees, and customers. It allows team members to arrange for child care and make other plans throughout the week. In New York, predictive scheduling laws protect retail, hospitality, and fast food team members from being subjected to unfair scheduling practices, including:

• Not having advance notice of work schedules.

• Having a schedule change at the last minute.

• Being scheduled to work back-to-back closing and opening shifts.

Currently, there is no federal predictive scheduling law. However, many states and cities, including New York City, have added predictive scheduling legislation to their employment laws. The Department of Labor typically oversees these regulations.

New York State does not have specific predictive scheduling laws. However, they do have a wage order for various industries that require increased pay for employees who are called into work but work fewer hours than expected.

Wage orders have other features depending on the employer's category. Typically, these include requiring extra payment for increasing hours if an employee's workday exceeds ten hours.

Additionally, part-time and full-time fast food workers throughout New York benefit from New York City's fair workweek ordinance. Let's explore these employment law concerns in more detail.

New York predictive scheduling laws allow shift workers in the retail, restaurant, and hospitality industries to know in advance which days they are working. This clarity enables them to more easily:

• Arrange for daycare.

• Coordinate any scheduling at a second job or with college courses.

• Schedule necessary appointments on their days off.

Many of these provisions are in the Fair Workweek Law. Here’s a look at how the predictive scheduling laws and rules apply to various industries. Please note that these are not the only employment law concerns you’ll have for an employee’s hours or actions. It’s important to work with professionals to safeguard yourself in other areas such as on-call shifts, minimum wage compliance, closing shift requirements, a collective bargaining agreement, and how you pay workers.

NYC retail employees

In New York City, retail employees’ rights are protected under New York predictive scheduling laws if the company has at least 20 employees whose primary work involves the sale of consumer goods. 

For these retailers, applicable provisions for covered employees include:

• The right to a work schedule given to them by their employer at least 72 hours before the start of their schedule (this schedule must be provided in the way that the employer typically contacts them, such as over email).

• Employers must post schedules so that all employees can see them at the retail business workplace.

• The employer cannot schedule on-call shifts.

• Employers must provide 72 hours or more of notice when adding an additional shift after the schedule is posted.

• Employers cannot cancel a shift within 72 hours of its start. The only exceptions are for circumstances such as threats to the employee's safety, a public utility failure, a shutdown of public transportation, a natural disaster, or a government-declared state of emergency.

Employers may choose to change shifts after posting a schedule but must pay a premium rate in that event. Premium rates vary, but this example notes that giving an employee less than 24 hours of notice that their shift has been extended requires the employer to pay an additional $75.

New York City hospitality employees

The New York City Fair Workweek Law requires employers in the hospitality industry to provide accommodations for a predictable schedule so employees can plan their lives. The information to be shared with covered employees includes:

• Reasonable estimates of how many hours the employee will work during a typical week for the duration of their employment.

• Days, hours, and locations of each shift expected to work.

• The effective date of the schedule.

• Employers must post schedules at least 14 days in advance, either in writing or digitally. Employees must also get a copy delivered to them at the same time.

• Schedules have to cover at least seven calendar days.

• Right-to-rest periods of at least 11 hours between shifts.

According to the fiar workweek ordinance, employers may not deviate from these planned schedules by more than 15% of an employee’s standard time unless the employee agrees to a reduction in hours in writing or the employer has an economic reason for a reduction.

If employers call in hospitality workers in New York for additional shifts, the employers must provide extra pay. The fee paid to employees ranges from $10 when the schedule change has less than 14 days of notice but does not impact their hours to $75 when the change comes in less than 24 hours of the shift and that employee has a reduced number of hours.

Fox Rothschild has published a comprehensive guide to most core wage laws applicable to the hospitality industry.

New York City fast food companies and workers

The Fair Workweek Law in New York City requires applicable employers of fast food and fast-casual chains with more than 30 corporate or franchise locations nationwide to provide the following for food service workers:

• Regular schedules that stay the same from week to week

• Schedules at least 14 days in advance of the start of the schedule

• Employees must receive special provisions for "clopenings," or back-to-back closing and opening shifts. Employers can only schedule clopenings with written consent from the employee. Also, the employer must pay a premium for fewer than 11 hours between the two shifts.

• A premium for short-notice schedule changes

• Employees must have the opportunity to say no to clopenings or shift changes without fear of retaliation

• Existing team members must be allowed to work more hours before new employees are hired

• Employees have protection against being fired or having their work hours reduced by more than 15 percent without just cause or a legitimate business reason

• If hours become available after lay-offs, employers must reinstate employees in order of seniority

On a related note, fast food employers must provide retraining and an opportunity to improve before firing an employee unless they do something illegal or dangerous.

Under the advance notice provision of New York predictive scheduling laws, employers must give employees at least 14 days' notice that they are scheduled to work. For example, for the June 15-22 workweek, the employer must provide written work schedules to employees by June 1. 

If an employer changes a shift or schedule less than 14 days before the posted schedule begins, they must pay all impacted employees a premium. Also, employees have the right to refuse a change.

The law is different regarding new employees, as there often needs to be more time between when they are hired and when they begin working to provide a schedule with at least 14 days' notice. Instead, employers must give the new employee a good-faith estimate of the hours they can expect to work.

This exception typically only covers the first schedule for a new employee.

Employers must also provide details regarding the specific time and date of scheduled shifts. They must share these details in writing or digitally. City laws have eliminated previous “good-faith estimates” around schedule changes and now require employers to stick to the 14-day windows described above.

Still, managers need to be organized and iron out common scheduling issues.

In New York City, the predictive scheduling laws prohibit employers from:

• Changing an employee's schedule with less than 72 hours of notice.

• Retaliating if employees decline extra hours or "clopenings."

• Reducing the hours of an employee by more than 15% without a legitimate business reason.

Also, employers can only require an employee to be "on-call" and work outside the schedule with less than a 72-hour notice if the employee agrees to this in writing. 

Employers must pay premiums for employees to work a shift with less than a 14-day notice or two shifts with less than 11 hours between the shifts.

Violating New York City's labor laws can result in severe consequences. Along with back-paying employee premiums, employers may face fines imposed by state and city authorities. Some of the potential penalties paid to the city or affected employees include:

• Violation of the right to rest rule (which prohibits an employee from starting one shift less than 11 hours after ending another): $500 plus any unpaid $100 premium.

• Failure to provide advance notice of a schedule: $200.

• Changes to the time and date of the work shift with no changes to hours:

  • $10 per change with less than 14 days of notice.

  • $15 per change with less than seven days of notice.

  • $15 per change with less than 24 hours of notice.

• Adding hours to the schedule:

  • $10 per change with less than 14 days of notice.

  • $15 per change with less than seven days of notice.

  • $15 per change with less than 24 hours of notice.

• Subtracting hours from the schedule:

  • $20 per change with less than 14 days of notice.

  • $45 per change with less than seven days of notice.

  • $75 per change with less than 24 hours of notice.

• Failing to allow existing employees access to available hours before hiring new employees to fill them: $300 to every current employee for each shift not offered to them.

Employers also face civil fines of $500 to $2,500, depending on the violation. If the City must take the company to court, fines can rise to as high as $15,000 per violation.

Some circumstances will negate potential fines of payments. For example, retail and fast food workers that engage in shift swaps after a shift is posted aren’t eligible for payouts if the impacted shift was swapped.

In 2017, New York City joined other cities, such as San Francisco, Philadelphia, Chicago, and Seattle, in protecting employees’s rights to predictability in their work schedules.

Since then, it has updated laws and fines regularly. Employers need to look at the most recent predictive scheduling laws as some past elements — such as COVID-19 provisions — have expired.

These laws protect shift-reliant industries, including retail establishments, hospitality providers, and fast-food restaurants. Failure to follow fair workweek laws is unethical and can result in employers paying penalty wages to team members who agree to work additional or non-standard hours.

Employee scheduling software like Hubstaff provides many benefits for NYC employers, including setting specific parameters in scheduling to ensure compliance. You can see at-a-glance if you might be violating predictive scheduling laws because of when shift changes occur.

With Hubstaff’s all-in-one workforce management software, it’s easy to start tracking time, use time clock software, follow the rules for hourly employees, and streamline scheduling. It will help you provide workers and existing part-time employees with the clarity they need to plan and build a positive work-life balance.

Book a demo with Hubstaff to see the software's full capabilities. You can also take it out for a test drive with a 14-day free trial.