New York City’s new ordinance that’s designed to help employees avoid last-minute changes in their work schedule is preempted by state law, according to a lawsuit filed Dec. 3 by a group of business associations.
The Fair Workweek Law requires employers to finalize work schedules at least three weeks in advance for fast food restaurants and three days in advance for retailers. An employer that makes a change within that window must pay affected workers a schedule change premium.
It’s rooted in the idea that requiring an employee to work on short notice can disrupt time an employee expected to be off. It can be difficult to make arrangements for child care, transportation, education, or simply enjoy leisure time away from work.
The law uses premiums to discourage other scheduling practices, such as closing a restaurant one night and opening the next morning. It prohibits on-call shifts for retailers, in which a worker must remain available to work while there is a possibility of being told to stay home because staffing is adequate. The city began enforcing the law in November 2017.
The International Franchise Association, the New York State Restaurant Association, and the National Restaurant Association’s legal arm, the Restaurant Law Center, filed the lawsuit Dec. 3 in state court.
Nearly 1,800 New York restaurants have been subjected to large premium payments and additional administrative costs, which has made it more difficult to provide fast and flexible customer service, Matt Haller, the IFA’s senior vice president of government relations and public affairs said in a statement announcing the lawsuit.
Moreover, the City Council lacks authority to enact a scheduling ordinance, according to the complaint. The state labor code gives regulatory authority solely to the state labor department and preempts New York City from administering worker scheduling rules, the business groups say.
As an example of the state asserting its authority, the groups note that the state labor commissioner is in the process of developing rules that address scheduling concerns. The state already has rules addressing work hours in certain industries.
The business groups, represented by Littler Mendelson P.C., asked the court to invalidate the city ordinance.
The Department of Consumer Affairs, which enforces the Fair Workweek Law, is aware of the complaint and reviewing it, a representative for the agency told Bloomberg Law.
The case is Int’l Franchise Ass’n v. City of New York, N.Y. Sup. Ct., No. not available, complaint filed 12/3/18.