What happened?

On January 17, 2018, a federal judge stayed enforcement of New York City’s (“City”) recently-enacted Fast Food Deductions Law (the “Deductions Law”). The order, entered by consent, was entered in a lawsuit challenging the law filed against the City by two leading foodservice advocacy organizations (Restaurant Law Center, et al. v. City of New York, et al., 1:17cv9128).  The stay is currently in place until the earlier of the determination of the parties’ dispositive motions or March 30, 2018.

What is the Fast Food Deductions Law?

The Deductions Law, which took effect November 26, 2017, was enacted as part of New York City’s Fair Work Week Laws to facilitate fast food employees’ ability to contribute to not-for-profit organizations that advocate on their behalf. Under the Deductions Law, “fast food employers” (defined in the law) must honor employee requests to deduct voluntary payments from their paychecks and must send the funds to the designated not-for-profit organization, provided it has a registration letter from New York City’s Department of Consumer Affairs (“DCA”).  The law does not permit contributions to “labor organizations,” as defined in the law.

Who is challenging the Deductions Law and why?

On November 21, 2017, the Restaurant Law Center and the National Restaurant Association, together, filed a lawsuit against the City challenging the law alleging that it:

  1. Violates the First Amendment because it requires fast food employers to “calculate, deduct, collect, administer, and remit employee deductions to political and ideological groups that employers may choose to oppose, and should not be forced to support.”
  2. Is preempted by the National Labor Relations Act because it “purports to grant [New York City] the authority to decide what is and is not a “labor organization”; and
  3. Is preempted by the Labor Management Relations Act (“LMRA”) because it “requires covered employers to pay funds without regard to the restrictions of the [LMRA], exposing employers to federal criminal liability and an impossible choice between compliance with federal or local law.”

What should employers do now?

Continue to monitor developments in this area. We will continue to provide updates on further developments.

The New York City Department of Consumer Affairs (“DCA”) has issued proposed rules  for the implementation of the Fair Workweek Law. The law establishes scheduling practices for fast food and retail workers in New York City and is set to go into effect on November 26, 2017.

With regard to retail employers, the proposed rules include:

  • Workplace notice positing requirements, § 14-02.   The DCA’s notice template is not yet available.
  • Workplace schedule posting requirements, § 14-04.   Retail employers must conspicuously post schedules three days before work begins.   The proposed rule expressly provides that employers may not post or otherwise disclose to other employees the work schedule of an employee who has been granted an accommodation based on the employee’s status as a survivor of domestic violence, stalking, or sexual assault, where disclosure would conflict with the accommodation.
  • Recordkeeping requirements to document compliance, § 14-08(a).   The proposed rule states these records must be maintained “in an electronically accessible format” and show:
    • Actual hours worked by each employee each week;
    • An employee’s written consent to any schedule changes, where required; and
    • Each written schedule provided to an employee.
  • Employee work schedule request requirements, § 14-08(b) and (c).   Within two weeks’ of an employee’s request, retail employers must provide employees with their work schedules for any previous week worked for the past three years. Within one week of an employee’s request, retail employers must provide the most current version of the complete work schedule for all employees who work at the same location, with the exception of those employees with accommodations based on the employee’s status as a survivor of domestic violence, stalking, or sexual assault.
  • Procedural guidance for employees who wish to proceed with a private right action against their employers for violations of the law.

A public hearing on the proposed rules is scheduled for Friday November 17, 2017. The deadline for written comments is 5:00 p.m. on November 17, 2017.