New Law Permits NYC Employees to Make Temporary Changes to Work Schedules

Effective July 18, 2018, New York City employers will be required to allow employees who have been employed for at least 120 days and who work at least 80 hours in New York City in a calendar year to make two temporary schedule changes per year for certain personal events. This legislation is similar to San Francisco’s Family Friendly Workplace Ordinance, which also gives employees the right to request a flexible or predictable work schedule.

Permissible Uses

The bill, Introduction No. 1399-2016, requires employers to grant temporary schedule changes for an employee’s request:

(1)   to provide care to a minor child or to a person living in the caregiver’s household with a disability who relies on the caregiver for medical care or the needs of daily living;    

(2)   to “attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party”; or

(3)   to attend to “any circumstance that would constitute a basis for permissible use of safe time or sick time” under the New York City Earned Safe and Sick Time Act (the Sick Time Act).  

Under the new law, temporary changes include “a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.” 

Employer Obligations 

Employers are only required to grant temporary changes two times per calendar year for up to one business day per request. If an employer permits an employee to use two business days for one request, granting a second request is not required. An employer may deny a request for a temporary change relating to a personal event only if the employee has already exhausted the two allotted requests in the calendar year or if an exemption, as described below, applies.

Notice Requirements

An employee must notify his or her employer or direct supervisor as soon as he or she becomes aware of the need for the temporary change and state that the change is due to a qualified personal event. The request need not be in writing, however, no later than two days after returning to work, the employee must indicate in writing the date for which the temporary change was requested and that change was due to the employee’s qualified personal event.

Within 14 days of receiving the request in writing, the employer must provide a written response that includes the following information:

• “Whether the employer will agree to the temporary change to the work schedule in the manner requested by the employee, or will provide the temporary change to the work schedule as leave without pay, which does not constitute a denial”
• An explanation for the denial, if the employer denies the request for a temporary change to the work schedule
• How many requests and how many temporary change business days the employee has left in the calendar year, after taking into account the employer’s decision contained in the written response

Interaction With the Sick Time Act

Under the new law, employees are not required to use Sick Time Act leave before requesting schedule changes. Unpaid leave granted for a personal event does not count towards any Sick Time Act-mandated leave. Likewise, leave granted under the Sick Time Act does not satisfy the requirements under this law.

Exemptions

There are narrow exemptions under the new law for the following individuals:

(1)   Employees covered by a collective bargaining agreement, “if such agreement waives the provisions of this [law] and addresses temporary changes to work schedules”

(2)   Employees who been employed for fewer than 120 days or do not work at least 80 hours in a calendar year in New York City

(3)   Individuals “employed by any employer whose primary business for which that employee works is the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations, except for an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers and except for an employee whose primary duty is performing routine mental, manual, mechanical or physical work in connection with the care or maintenance of an existing building or location used by the employer”

Penalties for Violations

Employers may be subject to a $500 penalty for each violation of this law. However, an employer may avoid liability if it presents proof to the New York City Office of Labor Standards that it provided the employee with the required written response within seven days of the office notifying the employer of its opportunity to cure. 

How Can Employers Prepare?

To prepare for this law’s implementation, New York City employers may want to carefully review their current practices and revise their scheduling and payroll practices, if necessary. They may also want to train supervisors and managers involved in the scheduling process. New York City employers in the fast food and retail industries will want to stay aware of their obligation to comply with the Fair Workweek Law, which became effective on November 26, 2017.

We will continue to monitor developments on this legislation and post updates to the firm’s blog as additional guidance becomes available.