New York labor regulators just finalized rules for New York’s Fair Workweek and introduced laws for fast-food workers — and there are some changes from the original proposals that might surprise unsuspecting employers. As previously reported, the New York City Department of Consumer and Worker Protection — the city agency charged with implementing the laws — released proposed rules earlier this year that deal with the updated FWW Act and the new Just Cause Act, both of which became effective in July 2021. Following the rulemaking process, the agency finalized these rules by incorporating revisions in response to comments from members of the fast food industry. While the final rules broadly follow the proposed rules, there are a few instances where the final rules differ – and you might be caught off guard. The final rules are scheduled to go into effect on June 23 – what are the top five differences between the final rules and the proposed rules that you need to know about?
Under the proposed rules, a “de minimis“A schedule change of less than 15 minutes did not trigger the act’s consent or premium payment requirements. The proposed regulations define “de minimis” As a total Schedule change of 15 minutes, aggregate start and stop time changes. For example, a change of 10 minutes at the beginning of the shift and 10 minutes at the end of the shift, i.e. a total of 20 minutes, was not a de minimis change.
However, the final regulations expanded what “de minimis” by no longer aggregating schedule changes and providing a 15-minute grace period before and after each shift. Not only does this give employers more flexibility, but it also reduces the administrative burden on employers as such a detailed record is no longer required. This revision takes a lot of the burden off employers by only having to check the start and end times of an employee’s shift when monitoring compliance with the law.
Under the FWW Act, an employer must pay an employee a schedule change premium if a schedule change (not at the employee’s request) occurs with less than 14 days’ notice. The final rules added an exception to this requirement where an employer shortens a shift (e.g. by cutting hours or eliminating a shift entirely) but still pays affected workers the hours originally scheduled.
However, in order for the employer to be exempt from paying the premium in this scenario, the employer must pay the employee for the entire shift and Keep records of the date and time that scheduled hours were paid and not worked. While this is a reasonable provision, the additional record-keeping requirement is a trap for the unwary. If the employer fires employees early and pays them for the remainder of the day, but does not keep a record of the employees leaving early, the employer could potentially owe a premium on top of the hours paid for time not worked under a strict Interpretation of the regulations.
The FWW Act requires an employer to obtain an employee’s prior written consent to work additional hours. The proposed rules gave employers a 15-minute grace period to obtain written consent only if there was an unscheduled extension of work hours at the end of the employee’s shift. So, for example, if an employer requires an employee to continue working past the end of their shift, the employer would have 15 minutes after the employee’s previous end of shift to obtain written consent – the employer would not be required to stop operations and to obtain this approval before the end of the shift.
The final terms will expand slightly if this grace period can be applied. The final regulations provide that the employer can invoke the 15-minute grace period to obtain consent “if an employer cannot obtain the written consent of an employee before the start of the grace period, such as if the schedule change involves an unscheduled extension of time.” While the change from the proposed regulations may seem like just semantics, the change recognizes that there will be scenarios other than just an unscheduled addition of time at the end of the shift when the grace period expires game could come.
The FWW Act requires employers to notify workers of their work schedule no later than 14 days before the first day of the new plan and require certain premium payments for plan changes made within 14 days, within seven days and within 24 hours. The final provisions state that the “days” referred to in the Articles of Association must be calculated in hourly equivalents – ie, 14 days is 336 hours and 7 days is 168 hours.
As we have already noted, the proposed regulations have dramatically increased the potential harms for violations of the Access Hours provision. The proposed rules said it would be a clear violation for any current Fast Food employee entitled to a shift offer, exponentially compounding statutory damages and potential damages to the point where just a single entry constitutes a violation violating the working hours would entail drastic penalties.
The final regulations have slightly withdrawn this method of damage calculation. The final rules state that the penalty for violating hours access is associated only with the non-offered shift, and the penalty is distributed fairly among the fast-food workers who should have received an offer for that shift. However, the final regulations still allow DCWP or a court to award damages (ie, additional payment) to Everyone current fast food employees who didn’t properly receive the shift’s offer. Again, this could result in a severe penalty for employers making even a single mistake, and will no doubt lead to confusion in determining how back payments are to be calculated and how and when back payments are eliminated altogether.
With the regulations’ effective date just hours away and significant penalties at stake, should fast-food employers fail to comply, you should (if you haven’t already) review your policies and procedures to ensure you comply with the law and its regulations. If you are not compliant, you should (quickly) adapt your policies and procedures to the legal requirements.
We will continue to monitor developments impacting fast food employers as they engage with FWW. So make sure you’re subscribed to the Fisher Phillips Insight System for the most up-to-date information. If you have any questions, please contact your Fisher Phillips attorney, the authors of this insight, or an attorney in our New York City office.