On January 9, 2019, Mayor Bill de Blasio announced his plan to make New York City the first city in the country to mandate that private sector employers provide paid personal time (“PPT”) for their employees. Under the proposal, employers with five or more employees would be required to grant their employees 10 days of PPT to use for any purpose, including vacation, religious observance, bereavement, or simply to spend time with their families. It is unclear whether the proposed legislation would apply to only full-time workers, or whether, similar to the Earned Safe and Sick Time Act (“ESSTA”), it would include many part-time employees as well. The Mayor said he would work with the New York City Council to develop the legislation, and several Council members have already voiced their support for the proposal.

According to the press release accompanying the mayor’s announcement of the PPT proposal, more than 500,000 employees in New York City currently are not provided paid personal time off, including 90,000 retail workers, 200,000 hotel and food service workers, and 180,000 workers in professional services. In his announcement and the press release, the mayor further asserted that: “Every other major nation recognizes the necessity of Paid Personal Time. We as a country must get there, and New York City will lead the way.”

Notably, the press release provided a few additional details of the anticipated legislation, including the following:

  • Similar to ESSTA, the law would contain a “carryover” provision under which employees could carry over up to 10 unused PPT days from one year to the next. And, like under ESSTA, employers would be able to cap an employee’s annual usage of PPT. With respect to PPT, the cap would be a maximum of 10 days per year;
  • Employees would be able to access their PPT after 120 days of employment; and
  • Employers could require employees to provide up to two weeks’ notice of their intent to use PPT. Moreover, an employer could deny such a request if granting it would leave the employer understaffed because one or more other employees will be on PPT leave at that time.

At this point, other details of what mandates a PPT law might contain, such as its applicability to part-time employees (as noted above), are speculative. For instance, while the Mayor’s announcement suggests that entitlement to PPT may be automatic, the press release implies that PPT would be accrued, similar to the ESSTA model. Also, it is possible that employers with fewer than five employers could incur some form of a time off obligation, such as having to grant unpaid personal time.

In light of recent trends to increase time off for employees, what is more certain is that some version of PPT is likely to garner sufficient support from the City Council and, probably sooner than later, become law. If so, most New York City employers will be obligated to afford their employees up to 15 paid days off per year – 10 under a PPT law and five pursuant to ESSTA. Also keep in mind the recently enacted New York City law that requires employers to grant most employees working in New York City a temporary schedule change – or unpaid leave – for up to two business days per year to attend to certain “personal events.” Though this law does not contain a paid time off requirement, it further expanded an employer’s obligations to provide employees with time off from work.

Thus, if past is prologue, employers should pay close attention to the mayor’s PPT plan.

We will keep you advised of any further developments on the PPT proposal.

Pursuant to its mandate to implement the new anti-sexual harassment training requirements under the Stop Sexual Harassment Act (the “Act”), the New York City Commission on Human Rights (“Commission”) just released FAQs clarifying various aspects of the Act’s training mandates. Most notably, the FAQs address how an employer should determine whether it is covered by the training requirement, as well as a covered employer’s obligations with regard to training independent contractors. The training mandate becomes effective on April 1, 2019.

The Act requires employers with 15 or more employees to provide annual, interactive training to all employees who work more than 80 hours in a calendar year and work for at least 90 days. In determining whether it meets the 15-employee threshold, the FAQs instruct employers to determine the number of employees they employed “at any point within the prior calendar year.” In making this assessment, employers must count independent contractors as “employees,” regardless of how many hours or days they worked in the prior year.

Additionally, the FAQs state that employers will be required to provide training to independent contractors who have performed work in the furtherance of the business for more than 90 days and more than 80 hours in a calendar year. Employers are not required to train independent contractors who reach the 90-day/80-hour threshold if they already received the mandated annual training elsewhere.

Additionally, the FAQs:

  • Reiterate the specific topics that the training must cover, including the Commission’s complaint process;
  • Clarify that employees must receive training every calendar year (rather than by the anniversary date of their last training);
  • Stress that employers must maintain records of all training for three years, including a signed acknowledgment by each employee (which may be done electronically);
  • Confirm the notice posting requirements and instruct as to when electronic posting is acceptable; and
  • Clarify when and how newly hired employees must receive the City-issued Fact Sheet, i.e., in print or electronically and by the end of the employee’s first week of work.

The City will be providing additional information in the next few months about harassment training obligations.

Featured on Employment Law This Week – New York City has enacted “fair workweek” legislation.

Mayor Bill de Blasio has signed a package of bills into law limiting scheduling flexibility for fast-food and retail employers. New York City is the third major city in the United States, after San Francisco and Seattle, to enact this kind of legislation. The bills require fast-food employers to provide new hires with good-faith estimates of the number of hours that they will work per week and to pay workers a premium for scheduling changes made less than 14 days in advance.

Watch the segment below, featuring our colleague Jeffrey Landes from Epstein Becker Green. Also see our recent post, “New York City Tells Fast Food Employees: ‘You Deserve a Break Today’ by Enacting New Fair Workweek Laws.”

Earlier this week, New York became the third major city in the United States to enact “fair workweek” laws aimed at protecting fast food and retail employees from scheduling practices that are perceived by the employees to be unfair and burdensome.   Following the lead set by San Francisco and Seattle, New York has adopted a series of new laws aimed at enhancing the work life of fast-food and retail employees.  By eliminating certain scheduling practices commonly used by fast food and retail employers, the New York Legislature seeks to protect these employees from unpredictable work schedules and fluctuating income that render it difficult for them to create budgets, schedule child or elder care, pursue further education, or obtain additional employment.   These new laws include the following provisions:

  • Fast food employers must now publish work schedules 14 days in advance;
  • If fast food employers make any changes to an employee’s schedule with less than 14 days’ notice, the employer must pay the employee, in addition to the employee’s normal compensation,  a bonus payment  ranging from $10 to $75 depending on the amount of notice provided of the change;
  • Before hiring new employees, fast food employers must first offer any available work shifts  to current employees, thereby enabling part-time employees desiring more work hours the opportunity to increase their hours worked and, accordingly, their income, before the employer hires additional part-time employees;
  • Fast food employers may no longer schedule an employee to work back-to-back shifts that close the restaurant one day and open it the next day if there are less than 11 hours in between the two shifts.  However, if an employee consents in writing to work such “clopening” shifts, the fast food employer must pay the employee an additional $100;
  • Fast food employees may ask their employers to deduct a portion of their salary and donate it directly to a nonprofit organization of their choice (This provision is a victory for unions as fast food employees can now earmark money to a group that fights for their rights, and the employer has to pay it on their behalf); and
  • Bans all retail employers  from utilizing  “on-call” scheduling that requires employees to be available to work and to contact the employer to determine if they are needed at work.

Our colleague Jeffrey H. Ruzal, Senior Counsel at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Decision Enjoining Federal Overtime Rule Changes Will Not Affect Proposed Increases Under New York State’s Overtime Laws.”

Following is an excerpt:

As we recently reported on our Wage & Hour Defense Blog, on November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor from implementing its new overtime exemption rule that would have more than doubled the current salary threshold for the executive, administrative, and professional exemptions and was scheduled to take effect on December 1, 2016. To the extent employers have not already increased exempt employees’ salaries or converted them to non-exempt positions, the injunction will, at the very least, appear to allow many employers to postpone those changes—but likely not in the case of employees who work in New York State.

On October 19, 2016, the New York State Department of Labor (“NYSDOL”) announced proposed amendments to the state’s minimum wage orders (“Proposed Amendments”) to increase the salary basis threshold for executive and administrative employees under the state’s wage and hour laws (New York does not impose a minimum salary threshold for exempt “professional” employees).  The current salary threshold for the administrative and executive exemptions under New York law is $675 per week ($35,100 annually) throughout the state.  The NYSDOL has proposed the following increases to New York’s salary threshold for the executive and administrative exemptions …

Read the full post here.

A new Act Now Advisory will be of interest to many of our readers in the hospitality industry: “Union Organizing at Retail and Food Service Businesses Gets Boost from New York City ‘Labor Peace’ Executive Order,” by our colleagues Allen B. Roberts, Steven M. Swirsky, Donald S. Krueger, and Kristopher D. Reichardt from Epstein Becker Green.

Following is an excerpt:

New York City retail and food service unions got a boost recently when Mayor Bill de Blasio signed an Executive Order titled “Labor Peace for Retail Establishments at City Development Projects.” Subject to some thresholds for the size and type of project and the amount of “Financial Assistance” received for a “City Development Project,” Executive Order No. 19 mandates that developers agree to a “labor peace clause.” In turn, the labor peace clause will compel the developer to require certain large retail and food service tenants to enter into a “Labor Peace Agreement” prohibiting their opposition to a “Labor Organization” that seeks to represent their employees. …

If the objective of the Executive Order is to assure labor peace by way of insulation from picketing, work stoppages, boycotts, or other economic interference, it is not clear how its selective targeting of retail and food service tenants occupying more than 15,000 square feet of space—and the exclusion of other tenants and union relations—delivers on its promise. There are multiple non-covered tenants and events that could occasion such on-site disruptions as picketing, work stoppages, off-site boycotts, or other economic interference.

As a threshold matter, there is no particular reason why a labor dispute with a tenant occupying space shy of 15,000 square feet—among them high-profile national businesses—somehow is less disruptive to the tranquility of a City Development Project than one directed at a tenant whose business model requires larger space.

Also, the Executive Order does not address the rights or responsibilities of either landlords or their tenants that are Covered Employers bound to accept a Labor Peace Agreement when faced with union demands for neutrality that go beyond the Executive Order’s “minimum” neutrality requirements. There could be a dispute over initial labor peace terms if a union, dissatisfied that the Executive Order’s Labor Peace Agreement secured only a Covered Employer’s “neutral posture” concerning representation efforts, were to protest to obtain more ambitious and advantageous commitments that are coveted objectives of union neutrality demands, such as …

Read the full Advisory here.