United States: Shifty Business: NYC Restricts Shift Scheduling For Retailers And Fast Food Chains

Last Updated: June 12 2017
Article by Robert S. Whitman and Needhy Shah
Most Read Contributor in United States, December 2017

Seyfarth Synopsis: Five new laws in New York City will impose strict limits on shift scheduling for fast food and retail industry employees. The laws will be effective 180 days after their signing, on November 26, 2017.

Effective November 26, 2017, chain fast food employers and retail employers will face numerous limitations on scheduling their employees' shifts. Fast food employers will be required to make and post shift schedules in advance, pay premiums for last-minute shift changes, offer open shifts to current employees before hiring new ones, avoid scheduling "clopening" shifts, and deduct and remit voluntary contributions from employees to not-for-profits. Retail employers will effectively be banned from on-call scheduling.

These restrictions are part of a package of five bills, passed by the New York City Council and signed by Mayor Bill de Blasio, known collectively as "Fair Workweek" legislation.  The laws will be administered by the Office of Labor Standards within the New York City Department of Consumer Affairs. 

Fast Food Provisions

Covered Employers and Employees

"Fast food" establishments are defined as those whose primary purpose is serving food or drink items; where patrons order and pay before eating, taking out, or getting delivery; and that are part of a chain of 30 or more establishments nationally. The affected employees are those whose duties include customer service, cooking, preparing food or drinks, delivery, security, stocking supplies or equipment, and cleaning or routine maintenance. Salaried employees are not covered.

Advance Scheduling Requirement

Employers will be required to provide fast food employees with a written estimate of the number of hours the employee will work each week and the expected dates, times, and locations of those hours. Any long-term or indefinite changes to those estimates must be updated as soon as possible and before the employee receives the first work schedule following that change.

Employers will also be required to provide employees, by their first day of work, with written notice of a work schedule containing regular and on-call shifts. The employer then must provide notice at least 14 days before the first day of any new schedule, with all anticipated regular or on-call shifts.

Employers will be required to provide written notice of the work schedule by posting it in a conspicuous place and sending it to each employee (including electronically if the employer regularly communicates scheduling information this way). Employers must also update these schedules within 24 hours of knowledge of a change or as soon as practicable for changes effective within 24 hours, provide a copy to affected employees, and post the revised schedule. Upon an employee's request, employers will have to provide that employee's work schedule for any week worked in the past three years, in writing, and the most current version of work schedules of all employees in the same establishment.  

The law allows employees to decline to work any hours not included in these schedules. If an employee agrees to work hours not in those schedules, the employer must obtain written consent by the start of the shift.

Schedule Change Premiums

Employers will be required to make premium payments to any employee affected by a change in the work schedule. These premiums are in addition to the employee's regular pay, must be paid at the same time as regular wages are paid, and must be noted separately on wage statements.

These premiums vary based on how far in advance a shift change is communicated and the type of change:

  • Between 14 days and 7 days in advance: $10 to $20 per change
  • Between 7 days and 24 hours in advance: $15 to $45 per change
  • Less than 24 hours in advance: $75 per change

Employers will not be required to provide schedule change premiums in the following circumstances: the employer's operations cannot begin or continue due to certain emergency conditions; the employee requested a schedule change in writing; two employees voluntarily traded shifts; or the employer is required to provide overtime pay for the changed shift.

Access to Hours

An employer must offer current employees the opportunity to serve regular and on call shifts before hiring new employees or subcontractors to perform the work. Generally, this means the employer must post a notice of these shifts for three consecutive days and provide an electronic copy to each employee. The notice must contain information about the number of available shifts; the schedule; whether they will occur at the same time weekly; the anticipated length of time coverage will be required; how and when employees should notify the employer of their interest; the criteria used to distribute them; and certain details about how shifts will be distributed. 

Employees from any location within the fast food chain may accept the shifts or any subset thereof in those three days, but those at the location of the open shifts will have priority. After three days, but more than 24 hours prior to the start of the shifts, employers may make shifts available to employees from other locations. Only after this process is completed may the employer hire new employees or subcontractors for any remaining shifts. Employers may avoid these waiting periods by obtaining written confirmation from a set of employees that they do not accept the shifts offered.

These provisions do not apply if the anticipated shift would require employees to be paid at the time-and-a-half overtime rate.

Employers are also encouraged to make reasonable efforts to offer training opportunities to workers on the skills and experience for work if the employer regularly has additional needs.

Banning "Clopening" Shifts

Employers cannot require fast food employees to work "clopening" shifts: two shifts with fewer than 11 hours between the time the first shift ends and the second shift begins, when the first shift ends on the previous day or spans two calendar days. However, employees may submit a written request or consent to work such a shift. Otherwise, the employer must pay the employee $100 for each instance an employee works a clopening shift.

Voluntary Contributions

Fast food employers will be required to deduct and remit voluntary contributions to not-for-profits from employees' paychecks. Employees or not-for-profits may submit a form to the employer authorizing deductions from a consenting employee's paycheck. The authorization form must include: the employee's signature; the employee's name and address; the amount, frequency, and start date of the contribution; the not-for-profit's name, address, email address, web address, phone number, and a contact for employees who want to revoke authorization; and a statement that contributions are voluntary and authorization to deduct may be revoked at any time in writing. 

Employees may revoke the authorization in writing with the not-for-profit, which must then submit it to the employer. Within five business days of receiving any authorization or revocation, employers must provide a copy of it to the relevant employee. Employers will be required to begin or end deductions by the first pay period after 15 days from having received the notice. Employers will only be required to honor an authorization once per pay period and for contributions of at least $3 for employees paid each week (or $6 if paid every two weeks). The Office of Labor Standards is expected to create rules on the processing fees for deduction and remittance, for which employers will be able to request reimbursement from the not-for-profit.

The Office of Labor Standards will create a notice of employee rights under this law, and employers will be required to distribute and post this written notice. The law further imposes recordkeeping obligations on employers. For two years, employers must keep the following records: deduction authorizations and revocations made; remittances; deductions; a copy of the authorization; and proof of distribution of the required notice to employees.

Retail Provisions

Covered Employers and Employees

 "Retail" employers are those with 20 or more employees that are engaged primarily in the sale of consumer goods at a store within New York City.

Banning On-Call Shifts

The law effectively bans on-call scheduling for retail employees. An on-call shift is defined as any period other than a regular shift when the employer requires the employee to be available to work. Retail employers may no longer do the following:

  • Schedule an employee for any on-call shift;
  • Cancel any employee's regular shift within 72 hours of its scheduled start;
  • Require an employee to work with fewer than 72 hours of notice (unless the employee consents in writing); or
  • Require an employee to contact the employer to confirm whether the employee should report for a regular shift fewer than 72 hours before the shift.

The law still allows retail employers to grant time off requests, permit employees to trade shifts, and make changes to employees' work schedules with less than 72 hours' notice if the employer's operations cannot begin or continue due to a limited number of reasons.

Retail employers will be required to provide a written work schedule 72 hours in advance of the first shift on that schedule, post it in a conspicuous place, update the schedule for any changes, and notify employees affected by any schedule changes. Employers that regularly communicate scheduling information electronically will also be required to transmit the work schedule electronically. Additionally, employers must provide employees, upon request, with a written work schedule for any week worked in the past three years. The law has a carve-out for employees covered by collective bargaining agreements that waive the provisions of this law and address employee scheduling.

General Provisions

Retaliation prohibited: Employers are prohibited from taking adverse actions against employees who engage in activities protected by these laws.

Notice and posting: The Office of Labor Standards will make available notices for employers to post in the workplace informing employees of their rights under each of the enacted laws. These notices will be made available to download and post before the effective date.  

Recordkeeping: Employers must retain records documenting their compliance with these laws for three years.

Investigation and penalties: The Office of Labor Standards will investigate any complaints received under these laws. If the Office finds violations of the laws, it may assess remedies including compensatory damages for employees, rescission of employee discipline, and civil penalties payable to the City of up to $1,000 per violation, or up to $15,000 where an employer engages in a pattern or practice of violations. Any person may bring a civil action for violations of these laws.

Implications for Employers

Employers should prepare to revise their written policies in accordance with the Fair Workweek legislation, and may receive questions from employees in advance of implementation. We will continue to track implementation of the legislation, and advise of any updates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Robert S. Whitman
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions