§ 7-624 Offering Shifts to Fast Food Employees.
RCNY § 7-624
(a)The provisions of § 20-1241 of the Fair Work Week Law only apply when a fast food employer is contemplating the hiring of a new fast food employee. A fast food employer is not required to follow any of the requirements of § 20-1241 to fill any available shift unless it hires, or anticipates hiring, a new fast food employee to fill the shift.
(b)When a shift is available, the employer may award it to any current fast food employee, in any non-discriminatory way the employer chooses, without publicizing the availability of the shift to current fast food employees and without offering it to employees who have been discharged for bona fide economic reasons, as long as the employer does not hire, or anticipate hiring, a new fast food employee to fill the shift.
(c)When a shift is available, the fast food employer may not hire a new fast food employee to fill it, unless: (i) the employer has first made reasonable efforts to offer reinstatement or restoration of hours to any employees who have been discharged for bona fide economic reasons within the past 365 days, in accordance with 6 RCNY § 7-629 of this chapter, and (ii) if the position has not been awarded to such a discharged employee, the employer has offered the shift to current fast food employees in accordance with §§ 20-1241(a)(2) and 20-1241(b) of the Fair Workweek Law by posting a notice of available shifts in the workplace and providing it to each current fast food employee electronically. If the fast food employer has followed these steps and no current fast food employee has accepted the offer, then the fast food employer may hire a new fast food employee to fill the shift.
(d)For purposes of § 20-1241(b) of the Fair Workweek Law and 6 RCNY §§ 7-603, 7-624, and 7-629, a shift becomes available any time a fast food employer decides to schedule a fast food employee to work the shift. It does not matter whether the shift is a newly-created shift or one that another fast food employee was previously scheduled to work.
(e)When a fast food employer is required to give notice of an available shift, the employer must include in the notice of available shifts the following information for each shift offered: 1. Location.
2.Start time.
3.End time.
4.Whether the shift is a temporary shift or recurring shift. If the shift is temporary, the notice must state the specific dates for which coverage is needed.
5.The number of employees needed to cover the shift.
6.How the employee should tell the employer that they want to pick up the shift and the deadline for doing so.
7.The criteria the employer will apply to distribute the shift, if multiple employees express interest.
8.A statement that priority will be given to employees who already work at the location where the shift is available.
(f)The fast food employer must post the notice of available shifts for at least three consecutive calendar days when it contains recurring shifts. Pursuant to § 20-1241(f) of the Fair Workweek Law, the fast food employer may post a notice of available shifts for a shift that is less than three days away for fewer than three days.
(g)Pursuant to § 20-1241(a) and (d) of the Fair Workweek Law, if the fast food employer is not required to award an available shift to a discharged employee who has accepted the shift, the fast food employer must award an available shift to a current fast food employee who has accepted the shift and already works at the location where the shift will be worked. If multiple current fast food employees from that location have accepted the shifts, the fast food employer must follow its own distribution criteria as described in the notice of available shifts to make the award. If no current fast food employee from that location has accepted the shifts, then pursuant to § 20-1241(f) of the Fair Workweek Law the employer may award the shift to any current fast food employee from another location who accepted the shift.
1.An employer must award a recurring shift by placing the recurring shift on the fast food employee's updated regular schedule and timely transmitting it to the fast food employee.
(h)A fast food employer may only hire a new fast food employee or place a recurring shift on a new fast food employee's regular schedule if, after the employer's offering the same shift as a recurring shift to discharged employees in accordance with 6 RCNY § 7-629 and to current fast food employees for at least three days in accordance with § 20-1241(b) of the Fair Workweek Law, no discharged employee or current fast food employee has accepted it. In the following examples, no employees have been discharged for bona fide economic reasons within the past year. The employer anticipates hiring a new fast food employee, but is required to first offer the available shifts to current fast food employees. Example 1: On its notice of available shifts, a fast food employer posts and emails recurring shift s for hours from 4:00 p.m. to 12:00 a.m. on Friday, Saturday, and Sunday nights. No current fast food employee accepts any of the recurring shifts. The fast food employer hires a new fast food employee and places on his regular schedule recurring shifts from 4:00 p.m. to 12:00 a.m. on Friday, Saturday and Sunday nights. The fast food employer has complied with the Fair Workweek Law by offering the shifts to current fast food employees, and after none were accepted, hiring a new fast food employee to perform the work described in the notice. On occasion, the employer also schedules the fast food employee just hired (whose status has changed from "new fast food employee" to "current fast food employee" because they have now worked for 8 hours) to fill shifts during the day or on other evenings, to meet increased demand or fill in for absent employees. The employer pays premiums to the employee for accepting these shifts, when required by § 20-1222 of the Fair Workweek Law. This also complies with the Fair Workweek Law. Example 2: On its notice of available shifts, a fast food employer posts recurring shifts for hours from 4:00 p.m. to 12:00 a.m. on Friday, Saturday, and Sunday nights. No current fast food employee accepts any of the recurring shifts. The fast food employer hires a new fast food employee and places on his regular schedule recurring shifts from 9:00 a.m. to 2:00 p.m. on Fridays, Saturdays, and Sundays instead of the hours described in the notice. The employer has not complied with the Fair Workweek Law because the hours in the notice do not match the hours actually assigned to the new fast food employee and the new fast food employee is assigned hours that were not previously offered to current fast food employees. The employer has also failed to email the notice of available shifts to all current fast food employees. Example 3: On its notice of available shifts, a fast food employer posts and emails recurring shifts for hours from 4:00 p.m. to 12:00 a.m. on Friday, Saturday, and Sunday nights. No current fast food employee accepts any of the recurring shifts. The employer hires three new fast food employees: Amalia, Brandon, and Christina. The employer places on Amalia's regular schedule recurring shifts from 4:00 p.m. to 12:00 a.m. on Friday, Saturday and Sunday. The employer places on Brandon's and Christina's regular schedule s recurring shift s from 9:00 a.m. to 2:00 p.m. on Fridays, Saturdays, and Sundays instead of the hours described in the notice. The assignment of shifts to Brandon and Christina violates the Fair Workweek Law because they are not performing the work described in the notice and their regular schedules contain recurring shift s that were not previously offered to current fast food employees. Example 4: On its notice of available shifts, a fast food employer posts and emails current fast food employees about temporary shifts available on specific dates that current fast food employees have left vacant on the schedule due to call-outs or terminations from employment. The fast food employer hires three new fast food employees and on their first day of work provides them regular schedules containing recurring shifts that were identified as temporary in the notice of available shifts. The hiring of each new fast food employee violates the Fair Workweek Law because their regular schedules contain recurring shifts that were not previously offered to current fast food employees.
(i)There is an instance of a violation of § 20-1241 of the Fair Workweek Law for each shift that a fast food employer assigns or awards to a new fast food employee without first offering the shift as required by § 20-1241 of the Fair Workweek Law. Monetary relief for each violation as provided in § 20-1208(a)(3)(e) shall be equitably distributed among the fast food employees who should have received offers of shifts.
(j)The department or a court may grant compensatory damages for violations of § 20-1241 of the Fair Workweek Law pursuant to § 20-1208(a)(1) (administrative remedies) and § 20-1211(a)(5) (private cause of action). Compensatory damages may include the wages current fast food employees did not have an opportunity to earn due to the fast food employer's failure to comply with § 20-1241 of the Fair Workweek Law.
(k)A fast food employer is not required to offer or award available shifts to a current fast food employee who is on a leave of absence, unless the current fast food employee is scheduled to return to work within 14 days of the date of the offer.
(l)A fast food employer that owns 50 or more fast food establishments in New York City may choose to make offers of shifts required by subdivisions (a), (b), (f) and (g) of § 20-1241 and in compliance with subdivisions (d) and (e) of this section only to fast food employees at its fast food establishments in the same borough as the location of the available shifts.
(m)When a fast food employer is required to provide current fast food employees notice of an available shift, the employer must first award shifts to current fast food employees of the location where the shifts will be worked. (Added City Record 5/24/2022, eff. 6/23/2022)
