Employment

Effective July 18, 2018, the Fair Workweek Law (the “Law”) requires almost all New York City employers to allow employees to make up to two requests for a temporary schedule change (totaling two business days) per calendar year for certain covered personal events.

Who is Covered by the Law?

Virtually all employers in New York City are covered, as the Law’s lone carve out is for employers “whose primary business is the development, creation, or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations” unless their employee’s primary duty is either: (1) performing “office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers”; or (2) performing “routine mental, manual, mechanical or physical work in connection with the care or maintenance of an existing building or location.”

Likewise, the Law covers all employees, except those who: (1) have been employed for fewer than 120 days or do not work at least 80 hours in a calendar year in New York City; or (2) are covered by a collective bargaining agreement, if “such agreement waives the provision of this [law] and addresses temporary changes to work schedules.”

What are Eligible “Personal Events” Under the Law?

Employees may make temporary changes to their schedule if the requested schedule change relates to:

• The need for a caregiver to provide care to a minor child or care recipient;
• An employee’s 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; or
• Any circumstance that would constitute a basis for permissible use of safe time or sick under New York City’s Earned Safe and Sick Time Act

How is a Temporary Schedule Change Requested and Approved?

First, as soon as the employee becomes aware of the need for a temporary schedule change, the employee must notify his or her employer or direct supervisor, propose a temporary change, and inform the employer that the need for the request is due to a personal event. This initial request does not need to be in writing.

Second, the employer must respond immediately to the request. If the employee requested the change in writing, the employer must also respond in writing, but if the request was verbal, the employer may respond verbally as well.

Third, the request must be put in writing. While the initial request need not be in writing, the request must be put in writing either before the schedule change occurs, if possible, or within two days following the employee’s return to work. This request must also contain the proposed schedule change, unless the employee is seeking leave without pay. Employers are required to provide an informal response immediately to a request for leave under the Law.

Once the employee has submitted a written request, the employer must respond within 14 days, either granting the request or explaining why it was denied. However, a request relating to a personal event can only be denied if: (1) the employee is not covered by the Law; or (2) the employee has already exhausted the two allotted requests in the calendar year, or requested two business days in a single request. In the alternative, the employer may grant an employee unpaid leave instead of any other schedule change the employee requests. The response must also tell the employee how many additional schedule changes he or she is entitled to for the remainder of the calendar year.

Notably, even if an employee has exhausted his or her leave under the Law, the employer is still required to comply with the foregoing procedure (but is entitled to deny the request).

What is a “Schedule Change” Under the Law?

The law defines a “temporary schedule change” as “a limited alteration in the hours or times that an employee is expected to work, or to the locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.”

Interaction with the Earned Safe and Sick Time Act

Employees are not required to use accrued time under the Earned Sick Time Act before requesting a temporary schedule change. Similarly, leave taken under the Earned Sick Time Act does not count toward an employer’s obligation to grant leave taken under the Law.

Next Steps for Employers

Employers should review and revise their existing leave policies and procedures, as well as their scheduling and payroll practices, if needed. Further, because the law provides that the employee may initially request leave from their direct supervisors, managers should be provided training on compliance with the Law.

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For more information on this issue or other employment matters, please contact:

Carol M. Goodman at [email protected] or +1 212 592 1465

© 2018 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.