Our colleagues at Epstein Becker Green have a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the retail industry: “Mayor de Blasio Proposes Mandatory Paid Personal Time Law.”

On January 9, 2019, Mayor Bill de Blasio announced his plan to make New York City the first city in the country to mandate that private sector employers provide paid personal time (“PPT”) for their employees. Under the proposal, employers with five or more employees would be required to grant their employees 10 days of PPT to use for any purpose, including vacation, religious observance, bereavement, or simply to spend time with their families. It is unclear whether the proposed legislation would apply to only full-time workers, or whether, similar to the Earned Safe and Sick Time Act (“ESSTA”), it would include many part-time employees as well. The Mayor said he would work with the New York City Council to develop the legislation, and several Council members have already voiced their support for the proposal. …

Read the full post here.

The New York State Department of Labor (“DOL”) recently issued proposed statewide regulations that would require employers to pay employees “call-in pay” when employers use “on call” scheduling or change employees’ work shifts on short notice. This is not the DOL’s first foray into this area – in November 2017, the DOL released similar proposed regulations but ultimately declined to adopt them. The DOL’s new set of proposed regulations would apply to the vast majority of employers operating in New York, but are of particular interest to New York City retail employers, who regularly use “on call” scheduling, and who are already subject to the New York City Fair Workweek laws.

When Would Employers Have to Pay Call-In Pay?

The proposed regulations would require employers to pay their employees “call-in pay” under the following five circumstances:

  • Reporting to work: An employee who reports to work for any shift at the request or permission of the employer must receive four hours of call-in pay.
  • Unscheduled shift: An employee who reports to work at the request or permission of the employer for a shift that was not scheduled at least 14 days in advance must receive two hours of call-in pay.
  • Cancelled shift: An employee whose shift is canceled by the employer within 14 days of the start of the shift must receive two hours of call-in pay. If the employee’s shift is cancelled within 72 hours of its scheduled start, the employee must receive four hours of call-in pay.
  • On-call: An employee who is required by the employer to be available to report to work for any shift must receive four hours of call-in pay.
  • Call for schedule: An employee who is required to contact the employer within 72 hours of the start of a shift to confirm whether to report to work must receive four hours of call-in pay.

Call-in pay for time that an employee actually attends work should be calculated at the employee’s regular rate or overtime rate of pay. All other call-in pay should be calculated at the basic minimum hourly rate with no allowances.

Exceptions to the Call-In Pay Requirements

The proposed regulations do include a number of exceptions to the call-in pay requirement, including the following:

  • The proposed regulations do not apply to employees who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.
  • An employee would not be entitled to call-in pay during any work week in which his or her weekly wages exceed 40 times the applicable basic hourly minimum wage rate.
  • Employers do not need to pay call-in pay for unscheduled shifts for new employees during their first two weeks of employment, or for any employee who volunteers to cover a new or previously scheduled shift.
  • In the event that an employer responds to a weather or other travel advisory by offering employees the option to voluntarily reduce or increase their scheduled hours (i.e., arrive early/late, depart early/late), the employer does not need to pay call-in pay for employees’ unscheduled or canceled shifts.
  • An employer does not need to pay call-in pay when it cancels a shift at the employee’s request for time off, or due to an act of god or other cause outside the employer’s control.

Special Note for New York City Retail Employers

Retail employers operating in New York City are already subject to the Fair Workweek laws, which took effect in November 2017. Under the City law, retail businesses must schedule employees’ shifts at least 72 hours in advance, and cannot add or cancel shifts with less than 72 hours’ notice. In addition, retailers generally cannot require employees to come to work with less than 72 hours’ notice, or require them to call in within fewer than 72 hours before the start of a shift to determine if they should come to work. The DOL’s proposed regulations, however, would permit employers to take these very same actions as long as they pay employees the correct amount of call-in pay. The DOL’s proposed regulations do not address this potential conflict with the New York City Fair Workweek laws, or any other potential impact on the existing City law.

The comment period on the DOL’s proposed regulations has closed, and we can expect that they could be adopted as early as the first quarter of this year. It is more likely that the DOL will adopt these regulations on this go-round – especially given the current political climate within New York State (including the most recent mid-term elections, which put Democrats in control of the state legislature). We will keep you updated with any further developments. If the regulations are adopted, all New York employers – particularly retail employers in New York City – should contact counsel to ensure that their policies are updated and in compliance.

Yesterday, the New York Attorney General (“NYAG”) announced a settlement with national retailer Aldo Group Inc. (“Aldo”) for violation of New York City’s ban the box law, which, among other things, prohibits employers from inquiring into a prospective employee’s criminal history on an initial employment application. The NYAG’s investigation revealed that (i) Aldo’s employment applications impermissibly inquired into the applicant’s criminal history and (ii) Aldo lacked consistent policies and procedures for evaluating the criminal records of applicants and employees, leading store-level managerial employees to believe they had wide latitude in how they could consider the criminal records of applicants and that they could bar applicants with a felony conviction from employment.

Under the settlement terms, Aldo will pay a $120,000 fine to New York State, modify their employment applications to bring them into compliance with New York’s ban the box law, create new policies and training to ensure that its stores individually assess applicants’ criminal histories at the appropriate point in the application process, and report the company’s remediation to the NYAG.

This is the first ban the box settlement reached by the NYAG in 2018, but the fifth such settlement overall. In 2017, the NYAG settled with Marshalls and Big Lots, as reported here.

This settlement should serve as another wake-up call to businesses operating in New York to bring their pre-hiring practices into compliance with New York’s ban the box law. The NYAG’s enforcement efforts are likely to continue and the costs of noncompliance are steep.

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.

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.

The law also offers clarity on the definition of “gender,” and continues to include a person’s gender-related self-image, appearance, behavior, expression, or other gender-related characteristic within its scope.

The new law will take effect on May 11, 2018.

Our colleague  at Epstein Becker Green has a post on the Health Employment and Labor blog that will be of interest to our readers in the retail industry: “New York City Council Passes Bills Establishing Procedures on Flexible Work Schedules and Reasonable Accommodation Requests.”

Following is an excerpt:

The New York City Council recently passed two bills affecting New York City employers and their employees. The first bill, Int. No. 1399, passed by the Council on December 6, 2017, amends Chapter 12 of title 20 of the City’s administrative code (colloquially known as the “Fair Workweek Law”) to include a new subchapter 6 to protect employees who seek temporary changes to work schedules for personal events.  Int. No. 1399 entitles New York City employees to request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code.  The bill establishes procedures for employees to request temporary work schedule changes and employer responses.  Exempt from the bill are employees: (i) who are covered by a collective bargaining agreement; (ii) who have been employed for fewer than 120 days; (iii) who work less than 80 hours in the city in a calendar year; and (iv) who work in the theater, film, or television industries. …

Read the full post here.

On May 15th, the Freelance Isn’t Free Act (“FIFA”) went into effect in New York City. The Department of Consumer Affairs (“DCA”) recently issued guidelines to help employers comply with the law.

Coverage and Immigration Status

FIFA protects all freelance workers regardless of their immigration status.

Contract Value Threshold

As previously explained, FIFA requires parties that retain freelance workers to provide any service where the contract between them has a value of $800 or more to reduce their agreement to a written contract. Under the DCA guidelines, the value of the contract includes “the reasonable value of all actual or anticipated services, costs for supplies, and any other expenses under the contract.”

Retaliation

FIFA prohibits hiring parties from retaliating against a freelance worker who exercises his/her rights under FIFA. Under the DCA guidelines, retaliation includes, but is not limited to, any adverse action related to perceived or actual immigration status or work authorization. In order to prove retaliation, a freelance worker can provide circumstantial or actual evidence of the hiring party’s adverse action. Any hiring party who denies a work opportunity to a freelance worker covered under FIFA is liable of retaliation regardless of whether a contract exists between them.

Waiver of Rights

All waivers or limitation for a freelance worker to participate or receive money in a judicial action are invalid as a matter of law under FIFA.

Employers should ensure that contracts entered into with freelance workers (or existing contracts that are renewed) with a value of $800 or more comply with FIFA and the published DCA rules.

This post was written with assistance from Corben J. Green, a 2017 Summer Associate at Epstein Becker Green.

Featured on Employment Law This Week – New York City has enacted “fair workweek” legislation.

Mayor Bill de Blasio has signed a package of bills into law limiting scheduling flexibility for fast-food and retail employers. New York City is the third major city in the United States, after San Francisco and Seattle, to enact this kind of legislation. The bills require fast-food employers to provide new hires with good-faith estimates of the number of hours that they will work per week and to pay workers a premium for scheduling changes made less than 14 days in advance.

Watch the segment below, featuring our colleague Jeffrey Landes from Epstein Becker Green. Also see our colleague John O’Connor’s recent post, “New York City Tells Fast Food Employees: ‘You Deserve a Break Today’ by Enacting New Fair Workweek Laws,” on the Hospitality Labor and Employment Law blog.

On May 24, 2017, the New York City Council signed a bill banning retail employers in New York City from utilizing “on-call scheduling.” Given the unpredictable fluctuations in customer flow associated with retail business operations, retail employers have historically utilized “on-call” schedules in an effort to manage labor costs associated with running their businesses. Rather than provide employees with fixed work schedules, many retail employers place employees “on-call,” requiring them to call in shortly before their work shift is to start to ascertain if they need to actually report to work.  The conflicting interests between retail employers and their employees posed by “on call” scheduling is obvious.  Retail employers favor the use of “on-call’ scheduling because it enables them to tailor their workforce to customer needs and avoid excessive labor costs.  Employees disfavor “on-call” scheduling for a variety of reasons.  First, they are not able to accurately predict their income because they are uncertain as to the number of hours they will actually work each week.  Second, the lack of rigid work schedule impacts their ability to plan their day-to-day life. Because they are not certain when they will be required to work, their ability to schedule appointments, attend regular school obligations, or hold a second employment position are impaired.

In January 2015, San Francisco became the first city to pass predictive scheduling legislation, requiring retail employers in that City to pay employees for cancelled on-call shifts and provide notice to their employees of their biweekly schedules. In September 2016, Seattle followed suit, enacting legislation mirroring that in San Francisco.  Similar predictive scheduling legislation is presently pending at the federal level as well as in no less than twelve states (California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon and Rhode Island).  By adopting this new law banning on-call scheduling, New York City becomes the most recent jurisdiction to seek to protect retail employees’ interests despite the increased operating costs such predictive scheduling legislation may impose on retail employers

Pursuant to the new law, retail employers in New York City now have to post employees’ work schedules at least 72 hours before the beginning of the scheduled hours of work. The law also precludes retail employers from cancelling, changing or adding work shifts within 72 hours of the start of the shift (except in limited cases).  Moreover, each retail employee must be scheduled for no less than 20 hours of work during each 14-day period.  In a press release in which he praised the New York City Council for passing the bill and in which he expressed his intent to immediately sign the law, Mayor de Blasio claimed that the law “will ensure that workers will be able to budget for the week ahead, schedule childcare, and plan evening classes.” While the law is clearly intended to help retail employees better balance their professional and personal lives, the strict scheduling requirements will challenge New York City’s retail employers to develop new means of managing their businesses impacted by the unpredictability posed by seasonal demand, customer fluctuation, weather, holidays, employee turnover issues, and other variations in day-to-day retail operations.

Our colleague Jeffrey H. Ruzal, Senior Counsel at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the retail industry: “Decision Enjoining Federal Overtime Rule Changes Will Not Affect Proposed Increases Under New York State’s Overtime Laws.”

Following is an excerpt:

As we recently reported on our Wage & Hour Defense Blog, on November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor from implementing its new overtime exemption rule that would have more than doubled the current salary threshold for the executive, administrative, and professional exemptions and was scheduled to take effect on December 1, 2016. To the extent employers have not already increased exempt employees’ salaries or converted them to non-exempt positions, the injunction will, at the very least, appear to allow many employers to postpone those changes—but likely not in the case of employees who work in New York State.

On October 19, 2016, the New York State Department of Labor (“NYSDOL”) announced proposed amendments to the state’s minimum wage orders (“Proposed Amendments”) to increase the salary basis threshold for executive and administrative employees under the state’s wage and hour laws (New York does not impose a minimum salary threshold for exempt “professional” employees).  The current salary threshold for the administrative and executive exemptions under New York law is $675 per week ($35,100 annually) throughout the state.  The NYSDOL has proposed the following increases to New York’s salary threshold for the executive and administrative exemptions …

Read the full post here.