Beginning on July 18, 2018, employers are required to grant their employees in New York City two single-day schedule changes per calendar year for qualifying personal events. The new law applies to nearly all employees who work in New York City, including employees classified as exempt from minimum wage and overtime benefits, subject to eligibility requirements, and allows such employees to request temporary changes to their schedules, such as adjusting hours and working remotely. Given this latest legislated employee benefit, employers will again need to update their practices and ensure that their written policies, including their handbooks, are in compliance.

The Temporary Schedule Change Benefits Defined

Employees are entitled to a temporary change to their work schedule up to two (2) times in a calendar year for one (1) or two (2) business days per request. If an employee uses two business days for one request, the employer need not grant a second request. The law defines a “temporary” schedule change as “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.” An employer who permits an employee to take the requested temporary schedule change as unpaid leave satisfies the employer’s obligation under the law.

Eligibility Requirements

To qualify for the schedule change, an employee must have been employed for more than 120 days and work more than 80 hours per calendar year. The schedule changes may only be used for the following qualifying “personal events”:

  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;
  3. 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.

This law does not apply to employees covered by a collective bargaining agreement that waives coverage and addresses scheduling changes, or employees of the movie, television or live entertainment industries that perform manual or non-office work.

Procedure

To use one or both flexible schedule days, employees facing a qualifying personal event must notify their employer as soon as they become aware of the need for a schedule change. While the initial request need not be in writing, it must convey that a schedule change is needed based on a qualifying event and describe the proposed change. This request must be followed by a written request, containing the same information, submitted no later than the second business day after the schedule change is taken.

As with an employee’s initial request, an employer who receives a request must respond immediately, but the initial response need not be in writing. Within 14 days, however, the employer must provide a written response detailing whether the proposed request is granted, whether the request will be granted as leave without pay, or whether it will be denied. A denial must include an explanation, and requests based on applicable personal events may only be denied if the employee has exhausted his or her two days per year. Employees are not required to exhaust their paid sick leave under New York City law before requesting their two schedule change days, and the two days do not count against their paid sick time.

Penalties

This new law will be enforced by the New York City Department of Consumer Affairs, Office of Labor Policy Standards (“OPLS”), which receives and investigates complaints. The OPLS is empowered to award damages for violations, such as compensatory damages and civil penalties payable to the City, as well a penalty of $500 per violation, payable to the employee. Employers who retaliate against an employee for requesting a temporary schedule change will be subject to additional penalties, including, inter alia, a $2,500 fine for terminating an employee, plus reinstatement and back pay.

Takeaways

Employers should ensure that their managers and human resources personnel understand this law and are prepared to handle such requests. In addition to such training, employers should update their policies and procedures to reflect these changes.