§ 7-620 Regular Scheduling.
RCNY § 7-620
(a)The requirement for a regular schedule is intended to provide a fast food employee with long-term scheduling predictability. The requirement to provide a "regular schedule" is separate and distinct from the requirement to post and transmit "work schedules" setting forth specific work shifts on specific dates. A regular schedule should set forth a fast food employer's actual expectation of a fast food employee's long-term schedule. An employer must update the regular schedule regular schedule in writing to document any long-term or indefinite change to any recurring shift on it, and must provide a copy to the employee.
(b)A fast food employer must at all times have a regular schedule in effect for each fast food employee employed or hired on or after July 4, 2021. Each regular schedule provided by a fast food employer must include the date such regular schedule takes effect.
(c)A regular schedule provided to a fast food employee is considered to be in effect unless and until a new regular schedule is provided to the employee.
(d)Reserved.
(e)A fast food employer's failure to provide a regular schedule to a fast food employee is a violation of § 20-1221(b) of the Fair Workweek Law for each week the employee works until a regular schedule is provided.
(f)1. A fast food employer may, but is not required to, have a policy or practice of collecting information from fast food employees about the hours they are available or unavailable to work, and using such information for scheduling purposes. A fast food employer may, but is not required to, have a policy or practice of requiring fast food employees to be available for a minimum number of hours per week, so long as such policy or practice is applied consistently and in a nondiscriminatory manner.
2.If a fast food employer does have a policy or practice of collecting information about fast food employees' availability to work for use in scheduling, and a fast food employee has informed the employer, in a manner complying with the fast food employer's policy or practice, that they are unavailable to work at specified times, the fast food employer may not add or change a recurring shift on an the fast food employee's regular schedule to a shift time that the fast food employee has specified they are unavailable to work, unless the fast food employee consents to the addition or change in writing as provided in § 20-1221(a) of the Fair Workweek Law. Without the fast food employee's written consent, the fast food employer's action would constitute a constructive discharge.
3.If a fast food employee provides a fast food employer written notice that they are no longer available to work all or part of a shift on their regular schedule, that constitutes such fast food employee's written consent to a reduction in hours on the regular schedule corresponding to that shift. In this scenario, the fast food employer has discretion to remove the entire recurring shift, or just the conflicting portion of it, from the regular schedule. Example 1: A fast food employer's employee handbook provides that fast food employees must provide at least 30 days' notice of a change in availability. The fast food employer gives fast food employee Martha a regular schedule that includes 27 hours per week. After two months, Martha informs her employer in writing that starting in six weeks, she will no longer be able to work one 5-hour recurring shift on Tuesday evenings due to a conflict with a college class. Martha also requests that her employer assign her a new recurring shift to keep her total hours at 27. Her employer gives her an updated regular work schedule reflecting the removal of the recurring Tuesday evening shift, with 22 total work hours, but does not add another shift to keep her total work hours at 27. Martha's baseline regular schedule is 22 hours because she requested the reduction. The employer is not required to accommodate Martha's request for a new morning recurring shift. Example 2: In the above scenario, after one month, Martha sees a six-hour recurring shift recurring shift on Saturdays on her employer's notice of available shifts. She accepts it and her employer awards it to her by placing it on her regular schedule. Martha's baseline regular schedule is now 28 hours. Example 3: In the above scenarios, after a month, Martha's employer removes the 6-hour Saturday recurring shift from Martha's regular schedule and places a new recurring shift of the same length on her for Tuesday evenings. The employer has violated the Fair Workweek Law by scheduling Martha to work a shift outside of the availability she provided in accordance with her employer's policies. In addition, the employer's removal of the Saturday shift has reduced Martha's hours by 21%. Unless the employer had a bona fide economic reason, this is a discharge in violation of the Fair Workweek Law, since it has reduced her hours by more than 15% (note that "discharges" are defined in § 20-1271 of the Fair Workweek Law to include "reductions in hours," which are in turn defined as "a reduction totaling at least 15 percent of the employee's regular schedule or 15 percent of any weekly work schedule"). Example 4: In the above scenarios, Martha's employer does not remove the Saturday recurring shift from her schedule but does place a new Tuesday evening recurring shift on her schedule. Martha's employer has violated the Fair Workweek Law by scheduling Martha to work a shift outside of the availability she provided in accordance with her employer's policies. If Martha does not work the newly scheduled Tuesday evening recurring shift, her employer cannot rely on her absence to support a purported just cause discharge under § 20-1272. Example 5: Martha informs her employer that she will not be available to work for the next 28 days, effective immediately. Assuming Martha is not taking leave that is protected under any provision of federal, state, or local law, Martha's employer has a variety of lawful responses. For example, the employer may issue progressive discipline to Martha for changing her hours of availability with less than 30 days' notice, and/or for not working shifts on her work schedule, as long as issuing such discipline is consistent with the employer's progressive discipline policy. The employer may also assign her shifts on a temporary basis to other employees. Unless she is terminated in a manner consistent with the provisions of §§ 20-1271 and 20-1272 of the Fair Workweek Law, or unless her leave is protected by another category of law, Martha retains her status as a "current fast food employee" until she quits, or she has failed to work at least 8 hours in a 30 day period. Example 6: Martha's co-worker, Fran, who currently works Mondays, Tuesdays, and Fridays, informs her employer that in five weeks she will only be available to work on Saturdays. Her employer removes all recurring shifts from Fran's regular schedule effective as of the date of her unavailability. Fran's baseline regular schedule is now zero hours. Over the next month, Fran does not accept any recurring shifts on her employer's notice of available shifts. After 30 days, Fran is considered to have quit her job, as discussed in 6 RCNY § 7-630. She is no longer a "current fast food employee" because she has not worked at least 8 hours in the previous 30 days.
(g)Subject to the provisions of subdivision (f) of 6 RCNY § 7-620 concerning employee availability, a fast food employer can change a fast food employee's regular schedule for any reason without their consent, so long as a fast food employer does not reduce the total hours in a fast food employee's regular schedule by more than 15% from the baseline regular schedule, and so long as the employer provides the employee with an updated copy of the regular schedule at least 14 days before the first day on the first work schedule following the change. Example 1: A fast food employer gives fast food employee Rebecca a regular schedule totaling 25 hours per week. After a month, Rebecca's employer gives her a new regular schedule totaling 23 hours per week, a reduction of 8%. Rebecca did not request this reduction, and she does not want it because it reduces her income. However, Rebecca's employer was not required to obtain her consent because the reduction was less than 15%. Rebecca's baseline regular schedule remains at 25 hours because she did not request or consent to the change. Example 2: In the above scenario, after two months, Rebecca's employer gives her a new regular schedule totaling 21 hours per week, and does not give her a notice of discharge indicating the discharge was for a bona fide economic reason or just cause. Rebecca did not request this reduction, and she is unhappy about it. There is a violation of the Fair Workweek Law because the employer has reduced Rebecca's regular schedule by 16% (25 hours to 21 hours) without her consent. Rebecca's baseline regular schedule remains at 25 hours because she did not request or consent to the change. Note that in either of the above examples, the outcome is the same if Rebecca's employer instructed her that she had to sign a form consenting to the reductions, and Rebecca did so. Rebecca's signature would not reflect her consent because she did not want the reductions and was not free to decline them. Example 3: Fast food employee Carlos has given his fast food employer open availability for 7 days a week. Carlos' employer gives him a regular schedule totaling 24 hours a week, containing the following recurring shifts: Mondays and Tuesdays from 6:00 a.m. to 12:00 p.m., Wednesdays from 7:00 a.m. to 12:00 p.m., and Fridays from 5:00 a.m. to 12:00 p.m. After three months, Carlos' employer gives him a new regular schedule totaling 35 hours per week, containing the following recurring shifts in afternoons and evenings: Tuesdays and Wednesdays from 12:00 p.m. to 10:00 p.m., Fridays from 4:00 p.m. to 12:00 a.m., and Saturdays from 5:00 p.m. to 12:00 a.m. Carlos received the new regular schedule by email on Sunday, November 7. Carlos also received a work schedule by email on Sunday, November 7 for the workweek beginning Monday, November 22 that contained shifts consistent with the new regular schedule. Carlos did not request these changes, and he is unhappy about them because although he provided open availability, he preferred to work in the morning. There is no violation of the Fair Workweek Law because the employer is not required to obtain Carlos' request or consent to changes to the regular schedule that do not reduce his total work time by more than 15%, and the employer gave Carlos the updated regular schedule and the first work schedule reflecting the change 14 days before the first day on the work schedule. Carlos' baseline regular schedule is now 35 hours. (Added City Record 5/24/2022, eff. 6/23/2022)
