Summary
Effective July 18, 2018, New York City private-sector employers are required to provide covered employees[1] with two temporary schedule changes per calendar year for certain “personal events”(“Temporary Schedule Change law”). The law, which amends New York City’s Administrative Code, defines the process that employers must follow when discussing schedule change requests with employees and protects employees from retaliation as a result of requesting a temporary schedule change.
What the Law Requires
The law requires employers to grant an employee’s request for a temporary schedule change for either:a) two occasions per calendar year, each totaling one business day; or b) one occasion, for up to two business days.
Employee Eligibility
In keeping with the Paid Safe and Sick Leave Act, employees who work at least 80 hours in New York City in a calendar year and have been employed by their employer for at least 120 days are covered under this law.
What Constitutes a “Personal Event”
“Personal events” for which an employee may make a temporary schedule change under the new law include
- need to care for a child under age 18 for whom the employee provides direct and ongoing care;
- need to care for a care recipient[2];
- need 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] or
- any circumstance that would constitute a basis for permissible use of safe or sick time pursuant to New York City’s Earned Safe and Sick Time Act, including, but not limited to: care and treatment of the employee or a family member; and assistance or other safety measures if the employee or a family member may be the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking.
What Constitutes a “Temporary Schedule Change”
A temporary schedule change is a limited alteration in the hours or locations where an employee is expected to work. This includes, but is not limited to:
- using paid time off;
- working remotely;
- swapping or shifting work hours; and
- using short-term unpaid leave.
Making the Request and Notice Requirements
As soon as an employee becomes aware of the need for a temporary schedule change, he or she should request one from the employer or direct supervisor, either verbally or in writing. The request should include:
- the date of the shift change;
- that the change is due to a qualifying personal event; and
- a proposal of the type of temporary change requested (e.g., to work from home).
The employee has the choice whether to submit a verbal or written request to his/her supervisor. If the request is made verbally, the employee must then follow up with a written request no later than the second business day after the employee returns to work. The employee should include the date of the temporary schedule change and that the change was for a qualifying personal event.
What an Employer Must do upon Receiving a Request for a Temporary Schedule Change
Employers must immediately respond to an employee’s request for a temporary schedule change.
Within 14 days of receiving an employee’s request for a temporary schedule change in writing, the employer must provide a detailed written response to the employee that includes:
- whether the request was granted or denied;
- how the request was accommodated (if granted) or the reason for denial (if denied); and
- how many requests employee has made for temporary schedule changes and how many days the employee has left in the calendar year for temporary schedule changes.
Employers must approve the employee’s proposal or provide unpaid leave. An employer’s decision to require an employee to take unpaid leave does not constitute a denial of the employee’s temporary schedule change request.
Employers may allow an employee to use paid time off if the employee chooses to do so, but may not require an employee to use leave earned under NYC’s Paid Safe and Sick Leave Law for a temporary schedule change. Also, an employer may not require supporting documentation, but could discipline an employee if it later learned that the employee had made the temporary schedule change for an unauthorized reason.
Employees Not Covered
The law does not apply to: (1) government employees; (2) employees subject to a collective bargaining agreement where such agreement covers temporary changes to work schedules; (3) certain employees in motion picture, television and live entertainment industries, unless they primarily perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, or their primary duty is performing routine mental, manual, mechanical, or physical work in connection with the care or maintenance of an existing building or location used by the employer.
Retaliation Prohibited
The law prohibits retaliation against employees for exercising or attempting to exercise any right under this law, including requesting temporary shift changes or for making additional requests for temporary shift changes beyond the allotted two per year. Additionally, employees may not waive their rights under this law.
Mandatory Postings and Recordkeeping
Employers must post a notice entitled “You Have a Right to Temporary Changes to Your Work Schedule” where employees can easily see it at the employer’s workplace. Employers must post this notice in English and in any language that is the primary language of at least 5% of its employees if the translation is available on the New York City Department of Consumer Affairs (DCA) website.
Employers must retain documentation of compliance with the temporary schedule change law for three years.
More information about employer obligations under this new law, a sample Notice of Rights, and an FAQ, may be found at the DCA’s website.
Consequences of Non-compliance
Employers who violate this law may be subject to a $500 penalty for the first violation of the new law, up to $750 for a second violation within a two-year period, up to $1,000 for subsequent violations within a two-year period, and any compensatory damages or other relief required to make the employee or former employee whole. However, if the employer’s violation was failing to provide a written response to the employee’s request, the employer may have an opportunity to avoid the fine if it meets certain criteria to cure the violation. There are additional penalties for retaliation which is also prohibited by this law.
Private Right of Action or Administrative Proceeding
Any employee alleging a violation of the Temporary Schedule Change law may choose to file a complaint with The Office of Labor Policy and Standards (“OLPS”) of the DCA, or bring a private action in civil court seeking monetary and other relief against his or her employer within 2 years of the date that he or she learned, or should have learned, of the violation.
Guidance Issued
In July, the DCA issued guidance on this law for employers in the form of FAQs and a pamphlet entitled: “Temporary Schedule Change Law: What Employers/Workers Need to Know.”
Practical next steps/recommendations for employers
In view of this new law, covered New York City employers would be well-advised to do the following.
- Update handbook policies to incorporate the new legal requirements and procedures for employees requesting a temporary schedule change.
- Post the notice “You Have a Right to Temporary Changes to Your Work Schedule” in the workplace in a place that is accessible to employees.
- Train supervisors on the new legal requirements and prohibition against retaliation.
- Ensure that the updated policies and procedures are consistently applied to all employees’ requests for temporary schedule changes in regards to personal events and maintain written documentation of requests and employer responses.
Please contact our Employment Law department if we can assist with updating your policies or conducting training: lisa@perlmanandperlman.com 212-889-0575.
[1] “Employee” means “employee” as defined in New York Labor Law section 651, subsection 5, or in title 29 of the United States Code, section 203. Note that NY Labor Law section 651, subsec. 5, excludes some categories of workers from its definition of “employee,” including, but not limited to, those working in a “bona fide exempt executive, administrative or professional capacity,” and clergy, and it remains unclear how the DCA will interpret the law in that regard.
[2] A “care recipient” means someone with a disability who is a member of the employee’s family or household and who relies on a caregiver for medical care or to meet daily living needs.
[3] A “family member” means any individual whose close association with the employee is the equivalent of family, child (biological, adopted, or foster child; legal ward; child of an employee standing in loco parentis), grandchild, spouse, domestic partner, parent, grandparent, child or parent of an employee’s spouse or domestic partner, sibling (including a half, adopted, or step sibling), any other individual related by blood to the Employee.
