This is the third in a series of blog posts concerning recent employment law developments in New York State and City:
The New York City Council is at it again – enacting yet another groundbreaking law intended to create some of the broadest workplace protections in the nation. The law itself – an amendment to the Fair Workweek Law that took effect last fall – requires that Big Apple employers grant temporary schedule changes to employees for qualifying “personal events.” This temporary scheduling law goes into effect on July 18, 2018.
Specifically, the Bill entitles employees to a maximum of two requests for a temporary schedule change per calendar year for qualifying personal events. A qualifying “personal event” is defined as
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.
As defined by the law, “temporary change” means “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.” Each requested change can only alter the employee’s schedule as to one business day.
Employees must notify their employers or direct supervisor as soon as they become aware of the need for a temporary work schedule change. Employees must also inform the employer or supervisor that the change is due to a qualifying personal event. While the employee’s initial request for a temporary schedule change need not be in writing, the employee must nevertheless file a written request as soon as practicable but, in any event, no later than the second business day after returning to work following the temporary change to their work schedule. The written request must state the date for which the change was requested, and that the request is due to a qualifying personal event.
If an employee submits a written request as outlined above, the employer must respond to the request in writing. However, if the employee fails to submit a written notice, an employer’s obligation to respond in writing is waived. The employer’s response must be conveyed as soon as practicable, but not later than 14 days after the employee submits their written request. The employer’s response must include:
i. 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 as leave without pay, which does not constitute a denial;
ii. If the employer denies the request, an explanation for the denial; and
iii. How many requests and how many business days under this law the employee has left in the calendar year after taking into account the employer’s decision contained in the written response.
Notably, employers may only deny an employee’s request if the employee has already exhausted the two allotted requests for that year or if an exemption applies. With respect to exemptions, the law provides several categories of employees that are exempt from coverage under the law, including:An employee who has been employed by the employer for less than 120 days;
i. An employee who works fewer than 80 hours in the city in a calendar year;
ii. An employee who performs manual or non-office work in the motion picture, television, or live entertainment industries, 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; or
iii. An employee covered by a valid collective bargaining agreement that waives the provisions of the Bill and addresses temporary changes to work schedules.
Interplay with City’s Safe and Sick Time Act
Under the new law, employees are not required to use leave accrued under New York City’s Earned Safe and Sick Time Act (ESSTA) before requesting temporary schedule changes. Any unpaid leave granted for a personal event does not count towards any ESSTA-mandated leave. Further, leave granted under the ESSTA does not count toward employer obligations under this Bill.
Employers may be subject to a $500 penalty for violations of this law. However, an employer may evade such liability if it presents proof to the NYC Office of Labor Standards that it provided the employee with a written response as required by the law within seven days of the office notifying the employer of the opportunity to cure. Employers may also be liable for additional damages and civil penalties under the Fair Workweek Law.
What Should My Company Do Now?
To help avoid the aforementioned penalties, employers should familiarize themselves with the writing and notice requirements under the Bill to ensure any written requests and responses to such requests are timely and compliant with the new Bill. Likewise, any and all documentation related to temporary schedule changes must be retained and preserved for a period of three years. It is also recommended that employers update existing tracking programs to ensure employee leave eligibility under the law is tracked and up-to-date. Employees in supervisory roles (e.g., managers) should also be trained to bring any temporary work schedule changes to Human Resources immediately, and should be familiar with the triggering personal events for such requests.