On July 18, 2018, the Department of Consumer Affairs (DCA) Office of Labor Policy & Standards (OLPS) began to enforce New York City’s Temporary Schedule Change Law. The law guarantees covered employees the right to temporary changes to their work schedules for certain “personal events.”
Who is covered?
All employees who work 80 plus hours per calendar year in New York City and who have been employed by their employer for 120 days or more. The law does not apply to government employees, certain employees subject to a collective bargaining agreement, or certain employees in the motion picture, television, and live entertainment industries.
What does the law do?
A temporary change can mean using short-term unpaid leave, paid time off, working remotely, or swapping or shifting working hours. Employers must grant requests for up to: A) two separate occasions, each totaling one business day, or, B) one occasion for up to two business days. Employers are not required to grant additional requests.
What is a “personal event?”
A personal event can be any of the following:
- The need to care for a child under the age of 18.
- The need to care for a “care recipient,” i.e. a person with a disability who is a family or household member and relies on the employee for medical care or to meet the needs of daily living.
- The need to attend a legal proceeding or hearing for public benefits to which the employee, a family member, or the employee’s minor child or care recipient is a party.
- Any other reason for which the employee may use leave under New York City’s Paid Safe and Sick Leave Law (visit nyc.gov/dca for more details).
Who counts as a “family member?”
Any individual whose close association with the employee is the equivalent of family. That means that not only are blood relatives included (like siblings, cousins, grandparents, and grandchildren), but also non-blood relations like a spouse, domestic partner, or adoptive family members.
How does this process work?
Employees must make a request for a temporary schedule change to their employer as soon as they become aware of the need for such change. The request can be either oral or in writing. The request should include:
- The date of the temporary schedule change.
- That the change is due to a personal event.
- The proposed type of temporary change (unless the employee would like to use leave without pay).
Employees are not required to include any other documentation or provide proof of the “personal event.”
If the employee requested the schedule change orally, the employee must thereafter submit a written request no later than the second business day after the employee returns to work.
Written requests submitted by the employee should include the date of the temporary schedule change and that the change was due to a personal event.
Employers must provide a written response within 14 days. The response must include:
- If the request was granted or denied.
- How the request was accommodated or the reason for denial.
- The number of requests the employee has made for temporary schedule changes.
- How many days the employee has left in the year for temporary schedule changes.
The employer must follow proper response procedure, even (and especially) if the request is being denied for any reason.
If the employee does not submit a written request, the employer is not required to provide a written response, but also cannot deny the request simply because the employee did not submit the request in writing.
What else do I need to know?
All employers must post the notice “You Have a Right to Temporary Changes to Your Work Schedule” where employees can easily see it at each NYC workplace. This form can be found here.
Employers must post this notice in English and in any language that is the primary language of at least five percent of the workers at a workplace, if the translation is available on the DCA website at nyc.gov/dca.
Employers must retain electronic records documenting their compliance with the law for three years unless another law requires that records be maintained for a longer period.
As always, an employer cannot punish, penalize, retaliate, or take any action against employees that might stop or deter them from exercising their rights under the law. These rights cannot be waived, and employers cannot request such waivers.
An employer who fails to comply with this law can be fined $500 per employee for a first violation, and pay compensatory damages or other relief to make a present or former employee whole. The Department of Consumer Affairs Office of Labor Policy & Standards can also seek injunctive relief.
If you have any questions about this or any other employment law, please contact the New York Employment Law practice group at Gordon Rees Scully Mansukhani, LLP. We are here to help make doing business in the big city as small of a hassle as possible.
Written by co-authors Misty Marris and Sebastian Clarkin of Gordon & Rees’ New York office.