The laws in New York City keep on changing. The latest: New York City’s Temporary Schedule Change Law, which went into effect on July 18, 2018.
The new law requires employers to provide employees with at least two (2) temporary schedule changes per calendar year – for up to one (1) business day per request or two (2) business days for one request – for qualifying “personal events.” The alterations of hours, times or location of work that an employee can request include, but are not limited to:
- Permission to use unpaid time off;
- Permission to use accrued paid time off;
- Changing the location of where an employee regularly reports to work;
- Changing the location of where an employee regularly reports to work;Allowing an employee to work remotely;
- Allowing an employee to work remotely;
- Shifting scheduled work hours; and
- Allowing an employee to swap shifts with another employee.
Qualifying “personal events” includes: (i) the need for a caregiver to provide care to a minor child or care recipient; (ii) an employee’s need 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 (iii) any circumstance that would constitute a basis for permissible use of safe time or sick time pursuant to New York City’s Earned Sick and Safe Time Act (more of which can be found here: https://yalepollacklaw.com/2018/05/24/nyc-adds-earned-safe-time-to-sick-time-act/)
In order to receive the benefits of the law, employees in NYC must: (a) have been employed for at least 120 days for the employer in New York City and worked at least 80 hours of work per calendar year in the City. The following employees may not obtain the benefits of the law: (a) government employees; (b) those covered by a collective bargaining agreement that waives the protections of the law but otherwise addresses temporary work schedule changes; and (c) those who work for an employer whose primary business is in the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations (although there are some exceptions to this category of employees, such as office workers or building/location workers).
In order to obtain the benefit of the law, employees must notify their employer or direct supervisor as soon as they become aware of the need for a temporary schedule change. The requested change does not initially have to be in writing, but it must set forth the proposed change along with the fact that it is for a “qualifying event.” The employer is then obligated to respond (although, again, not in writing). Thereafter, the employee must submit a written request no later than the second business day after the employee returns to work indicating the date for which the change was requested and that it was due to an employee’s personal event. The employer then has up to fourteen (14) days after the employee submits a written request to provide a written response indicating whether it agrees to the change as proposed or will provide the change as leave without pay (which does not constitute a denial), or if it denies the request, providing an explanation for the denial. The employer’s determination must also indicate how many requests and how many business days the employee has left in the calendar year.
A request must be granted unless the employee has exhausted their two allotted requests (or if the employee does not receive the benefit of the law as set forth above).
Employers are not allowed to discriminate or retaliate against an employee who exercises his/her rights under the law.
The law requires employers to post the notice published by the NYC Department of Consumer Affairs, which is available here. The notice should be 11″ x 17″ in size and posted in both English and in the primary language of at least five percent (5%) of the workers at a workplace. Employers are required to maintain electronic records of their compliance with the new law for three (3) years
Penalties for violations may include compensatory damages and civil penalties, as well an administrative penalty of $500 per violation, payable to the employee.
With the changes, it is important to update policies and pay practices to stay in compliance. For questions, please contact the Law Offices of Yale Pollack, P.C., located in Syosset, New York and servicing the Metropolitan Area, including Long Island and New York City.