It’s Predictable: New York City Bans On-Call Scheduling

San Francisco passed the first predictive scheduling legislation in January 2015. Seattle passed a similar law in September 2016. Predictive scheduling legislation is presently pending at the federal level as well as in several other states.

Bill 1387-A restricts certain scheduling practices of retail employers with 20 or more employees at one or more stores within New York City. Such employers may not:

1. Schedule a retail employee for any on-call shift;

2. Cancel any regular shift for a retail employee within 72 hours of the scheduled start of such shift;

3. Require a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing; or

4. Require a retail employee to contact a retail employer to confirm whether or not the employee should report for a regular shift fewer than 72 hours before the start of such shift.

Nevertheless, a retail employer may:

1. Grant a retail employee time off pursuant to an employee’s request;

2. Allow a retail employee to trade shifts with another retail employee; and

3. Make changes to retail employees’ work schedules with less than 72 hours’ notice if the employer’s operations cannot begin or continue due to:

   1. Threats to the retail employees or the retail employer’s property;

   2. The failure of public utilities or the shutdown of public transportation;

   3. A fire, flood or other natural disaster; or

   4. A state of emergency declared by the president of the United States, governor of the state of New York or mayor of the city.

The law further requires retail employers to provide retail employees with a written work schedule no later than 72 hours before the first shift on the work schedule. Retail employers must conspicuously post in a location that is accessible and visible to all retail employees at the work location, the work schedule of all the retail employees at that work location at least 72 hours before the beginning of the scheduled hours of work, and must update the schedule and directly notify affected retail employees after making changes to the work schedule.

Retail employers must also transmit the work schedule by electronic means, if such means are regularly used to communicate scheduling information. Upon request by a retail employee, a retail employer must provide the employee with such employee’s work schedule in writing for any week worked within the prior three years and the most current version of the work schedule for all retail employees at that work location, whether or not changes to the work schedule have been posted.

The law does not apply to any retail employee covered by a valid collective bargaining agreement, including an agreement that is open for negotiation, if (i) such provisions are expressly waived in such collective bargaining agreement; and (ii) the agreement addresses employee scheduling.

The law goes into effect 180 days from May 30, 2017. At press time, Andrew Cuomo and the state legislators were working on a statewide bill that would pre-empt the New York City law. The Cuomo proposal would apply to more workers, and in some cases, it would be more restrictive, and in other cases, less restrictive, than the de Blasio law.