If you work in fast food in New York City, the Fair Workweek Law protects you from last-minute schedule changes and the dreaded “clopening” shift.
If you work in a fast food restaurant in New York City, the Fair Workweek Law spells out your rights when it comes to scheduling shifts.
The law can be broken down into three categories:
- Predictable schedules
- Reasonable shift assignments
- Job protections
In addition, “clopening” shifts are prohibited without your consent. A “clopening” is when you close the restaurant one day and open it the next.
Importantly, your manager cannot retaliate against you for exercising any of your rights. Your manager may not intimidate you, fire you, or reduce your work hours if you raise a concern that your employer may have violated the law.
The Fair Workweek Law requires fast food employers to post this notice about its coverage and follow certain standards to create a fair and supportive work environment.
So that you can understand your rights under the law, let’s dive into its specifics.
Who’s Covered
If you perform any of the following duties at a fast food restaurant in New York City, you’re covered by the Fair Workweek Law:
- Cleaning
- Cooking
- Customer service
- Delivery
- Food or drink preparation
- Routine maintenance duties
- Security
- Stocking supplies or equipment
It doesn’t matter if you work for the restaurant directly or for another company, like a temp firm or a subcontractor. For example, providing security is a covered duty, even if you work for a third-party security company
The law covers all fast food workers in NYC, no matter your immigration status.
Predictable Schedules
An important requirement of the Fair Workweek Law is that your manager must give you a predictable schedule that hardly fluctuates from week to week. In addition, your manager must post employees’ schedules at least 14 days in advance.
Remember, these rules are designed to empower you. You have the right to say no if your boss asks you to work a shift that violates these rules.
On the other hand, you are free to request more hours or to trade shifts with someone.
- Stable schedules. Your employer is supposed to give you a written copy of your weekly schedule when you’re hired and generally stick to it going forward. Your manager may make a long-term change to your schedule if they notify you at least two weeks in advance, but your hours cannot be reduced by 15% or more unless your employer explains why in writing.
- No last-minute changes. Your manager may not change your schedule less than two weeks before a shift. If they do, they must pay a premium of up to $75. The exact amount depends on how short the notice is and whether the change reduces your hours.
- Respecting your availability. If your boss asks you for your availability for scheduling purposes, they may not put you on a shift when you say you aren’t available. However, your employer is allowed to require you to give advance notice of changes in your availability.
Reasonable Shift Assignments
Back-to-back closing and opening shifts – known as “clopenings” – are prohibited. When you close the restaurant one day and open it the next, you don’t have much time to rest, especially if you have a far commute.
The law also requires that when shifts become available, your employer must offer them to current employees or anybody who’s been laid off recently before hiring someone new.
- No “clopenings.” You’re entitled to at least 11 hours between shifts on consecutive days. If your manager wants you to work a clopening, it must get your consent in writing and pay you $100 in addition to your regular earnings.
- Priority for available shifts. If a shift becomes available, your employer must post an announcement in the restaurant and send an email offering it to current employees and anybody who’s been laid off recently. Every time a shift is available, there may be a penalty up to $300 for each employee who isn’t notified.
Job Protections
In addition to the scheduling rules, the Fair Workweek Law has protections designed to keep you safe from unfair discipline.
- Just cause. Your manager may not fire you or reduce your hours without justification. If you’re fired, they must explain why in writing and outline the disciplinary steps they took before terminating your employment. Examples of “just cause” include unsatisfactory performance or failure to follow company policy.
- Progressive discipline. Your employer must develop rules and procedures for how it will handle workers who violate company policy. There must be a range of possible penalties, the discipline must be fair, and the rules have to be reasonable and consistently applied. Your manager can’t use any issues more than a year old as the basis for any form of progressive discipline.
- Layoff protections. A fast food employer may lay employees off for economic reasons, such as a decline in sales, beginning with the most recently hired workers. But if conditions improve, it must offer to reinstate former employees laid off within the last year before it hires anybody new.
- Right to challenge. If you think your employer didn’t follow just cause or progressive discipline requirements, or mishandled layoffs, you can file a case before a neutral arbitrator. You can also file a complaint with the NYC Department of Consumer and Worker Protection or file a lawsuit in court, but you can only pursue one of these options. It’s best to consult a qualified employment attorney first.
Penalties for Violations
If you file a complaint and your employer is found to have broken the law, there is a range of possible penalties that can help undo its violation.
- Back pay. If your employer is found to have made last-minute changes to your schedule, you may be entitled to the schedule change premiums it was supposed to pay. If your employer retaliated against you because you raised a concern about your rights, such as by reducing your pay or hours or firing you, you may be able to get the wages and benefits you would have earned.
- Cancelled discipline. If your employer issued a disciplinary record because you didn’t work a shift it wanted, but that assignment violated the Fair Workweek Law, you may be able to have the discipline erased from your record.
- Reinstatement. If you were fired because you weren’t able to work a schedule that violated the Fair Workweek Law, you may be entitled to your job back.
- Injunction. Your employer may be ordered to take steps to undo its past violations and ensure compliance going forward.
The Fair Workweek Law ensures that fast food employees have a just and supportive workplace. Remember, all fast food businesses in New York City must follow this law, and you have the right to challenge any violations. Staying informed is the first step to ensuring you get the fair treatment you deserve.
Outten & Golden LLP is committed to upholding the rights of fast food employees and holding employers accountable for labor law violations. If you’ve faced scheduling issues or unfair treatment, please reach out to us.
