New York City Releases Software Specifications for Fast-food Employer Fair Workweek Compliance

In the last decade, various large cities including New York City, Philadelphia, Chicago, Seattle, San Francisco, Emeryville, and Los Angeles (and Los Angeles County)¹ have passed predictable scheduling laws. These laws, also known as Fair Workweek (FWW) laws, usually apply to hospitality and retail employers and impose a host of unique scheduling requirements on covered employers. The New York City Department of Consumer and Worker Protection (DCWP) – the agency tasked with enforcement of New York City’s FWW law – recently released a guidance document providing recommended software specifications to support fast-food employers’ electronic compliance with the city’s law.

Overview of Fair Workweek Laws 

A hallmark of most FWW laws is that they require covered employers to publish (by posting and delivering) schedules at least 14 days before the first shift on the schedule. These FWW laws also typically prohibit employers from requiring employees to work additional hours or new shifts, and prohibit covered employers from cutting shifts or scheduled hours with less than 14 days’ notice. Most FWW laws also require covered employers to pay schedule change premiums anytime an employee works unscheduled hours or shifts, or less than they were scheduled to work. Finally, many of these FWW laws also contain a provision that prohibits covered employers from hiring new employees unless and until the employer has issued an “access to hours” notice to all current employees that offers the existing employees the opportunity to pick up new shifts or hours that the employer would otherwise be issuing to newly hired employees.²

These laws also typically contain onerous recordkeeping requirements. For example, in virtually every jurisdiction with a FWW law, covered employers must retain proof that they distributed schedules on time by retaining some sort of proof that they both posted the schedule in a conspicuous location (this proof usually consists of a dated photograph of the posted schedule), and proof that each employee received a copy of their schedule (this proof can consist of an email or text message to each employee, or proof that the schedule was posted on a scheduling app, and “pushed” out to all employees). Employers are also required to have payroll records showing schedule change premiums were paid, and are expected to retain written records showing that employees were either told that they had the right to refuse to work previously unscheduled shifts, or records showing that the employee consented to work additional hours. Likewise, employers are expected to retain documentation showing each time an employee showed up late or did not show up to their shifts, to demonstrate that the shift reduction was the employee’s fault and not the result of a request by the employer. 

These laws are very complicated and constitute a major disruption to the scheduling practices most employers utilized for decades. In addition, many covered employers do not have sophisticated scheduling systems that are capable of retaining all of the records necessary to demonstrate compliance with FWW laws. As a result, in recent years, many city agencies, particularly in New York City, Chicago, and Seattle, and class action lawyers in Philadelphia and New York City, have initiated FWW compliance investigations or complaints that have resulted in findings or settlements requiring covered employers to pay hundreds of thousands or millions of dollars. For example, the DCWP has secured many six-, seven-, and eight-figure settlements against businesses of all sizes. However, in a recent attempt to assist covered employers’ compliance efforts, the DCWP has issued guidance documents, including FAQs, to help employers navigate the complexities of the law. Despite these helpful documents, due to the complexity of the FWW law, employers still often struggle to accurately monitor every deviation from every schedule and also struggle to obtain documentation that explains every deviation from every schedule. 

In an attempt to help employers develop systems to track their FWW law compliance efforts, the DCWP published its most recent guidance document to assist fast-food employers. While covered fast-food employers are not required to adopt these specifications, this document provides a thorough and detailed roadmap of what the DCWP is looking for when it investigates allegations of non-compliance. It is worth noting that this document is specific to New York City’s fast-food industry, but it can additionally serve as a template for New York City’s retail employers, and be modified to assist employers that operate in other FWW jurisdictions throughout the country in developing automated FWW compliance tools. The document may also assist software vendors and developers create robust and accurate compliance tools to avoid the exorbitant penalties employers would otherwise be subject to for alleged FWW law violations.

The NYC FWW law (and its regulations) already requires fast-food employers to keep the following records:

• A roster identifying each employee who works at a New York City fast-food restaurant, including their phone number, email address and mailing address;
• Actual hours worked by an employee each week, including dates of work, actual work hours, and work locations;
• Each work schedule provided to each employee, including dates, times and locations where work is to be performed and the date and time that the schedule was provided to the employee;
• Documents showing shift trades between employees;
• Employees’ “regular schedules”;
• Employees’ written requests for changes to their work schedule or for changes to their “regular schedule”;
• Written consent forms memorializing agreement to work additional hours or shifts, or consent to be scheduled differently from the time reflected in a regular schedule, including the date and time the consent was created;
• Support for each instance a schedule change premium was not owed to a fast-food employee due to the employee’s lateness or absence;
• Pay records showing all schedule changes and premiums owed;
• “Access to Hours” shift offers and shift acceptances;
• All records of discipline issued to fast-food employees; and
• Notice of discharge to all fast-food employees including the date of discharge, and explanation of whether the discharge is due to a violation of the employer’s progressive discipline policy or due to bona fide economic reasons, and the date and method of distribution of the discharge notice. 

Below please find a high-level overview of the DCWP’s recommendations.

Overview of DCWP Recommendations

Because covered employers are required to keep the records described above, the DCWP recognizes that the optimal FWW compliance tool would integrate a scheduling system used to offer and assign shifts to employees; a timekeeping system used to track time worked by employees; a payroll system used to calculate and distribute pay to employees; and a human resources management system used to record basic information about employees and document their employment history (e.g., name, contact information, dates of employment, evaluations, and disciplinary record, etc.). The DCWP recommends the adoption of a single system to incorporate all of these requirements but emphasizes that an employer that uses multiple systems to keep all required FWW records must devise a way to integrate the various systems to ensure compliance. The DCWP further cautions against maintaining systems that do not interact with each other and require, “the need for manual transcription or reconciliation.”

The DCWP also emphasizes that any compliant FWW tracking systems should have the following features:

• A manager view that permits a store manager (or other approved staff) to view scheduling, time and attendance, and payroll information for a location, assign schedules, and perform other scheduling-related tasks;
• An employee view that employees can access to view their own scheduling, time and attendance, and pay information, provide consent to schedules, and request schedule changes;
• Automated communication to employees by text message, email, and (for mobile applications) push notification as a means to send out schedules and access to hours notices to each employee;
• Integration with a tablet or other in-store hardware components that can be used to accept user inputs (such as time punches and consents) and display messages (e.g., “by clicking here I consent to work beyond my scheduled time”); and
• Appropriate record statuses to distinguish, at a minimum, between “draft” and “published” content within the software.

The DCWP’s specification guide addresses each component of the FWW law and spells out in detail what should be maintained by an integrated electronic recordkeeping system. The recommendations cover:

• Employee Profiles;
• Regular Schedules;
• Work Schedules;
• Time and Attendance;
• Requests and Consent to Schedule Changes;
• Payroll Processing;
• Configuration and Customization;
• Authentication;
• Reporting;
• Compliance;
• Schedule Change Premium Audits;
• Minimum Time Between Shifts;
• Access to Hours Audits; and
• Prohibition on Wrongful Discharge Audits.

For employers that are not using an electronic system to comply with the FWW Ordinance,  or want to create or purchase one (or have already done so), these specifications provide useful practical guidance on how to comply with the law’s recordkeeping requirements as this section provides great detail on what is expected to be maintained and produced to the DCWP in an investigation.

Next Steps

At this time, employers can review the recommendations and compare them to their current document creation and retention policies and programs to ensure all required data is adequately tracked and maintained. In the event employers are utilizing a third-party vendor to maintain scheduling compliance, employers should ensure their vendor is aware of these recommendations and are following the requirements pursuant to FWW law. Furthermore, while this document contains information specific to the New York City FWW, other jurisdictions’ FWW enforcement agencies are likely to be looking for similar documentation and for the adoption of similar FWW compliance tools.