By Mark F. Kluger and William H. Healey
On July 18, 2018, New York City employers will be plunged into further HR chaos when the Temporary Schedule Change law becomes effective. The law allows employees who have worked for 120 days and 80 hours in NYC to request 2 temporary schedule changes a year for personal events; but request is a bit of a misnomer, as the sole basis for an employer to deny the schedule change is if the employee has exhausted the 2 days. How’s that for employer discretion?
The types of changes an employee can seek under the law are: (1) an alteration of scheduled hours; (2) a change of work location; (3) the ability to work remotely; (4) a shift swap with another employee; (5) the use of a PTO day; and (6) the use of an unpaid leave day. The schedule changes are for one business day, twice each calendar year.
Personal events are broadly defined to include time to provide medical or similar care to a wide range of family members and pseudo-family members (like someone the employee had a civil conversation with on the subway), to attend legal proceedings or make arrangements due to an employee or family member’s experience with domestic or sexual violence, or any of the countless other reasons allowed for under the City’s Earned Sick Time Act.
As if this scheme were not wacky enough, here’s where the City Council lost its collective mind: employees seeking a temporary schedule change must notify their employer when they become aware of the personal event and propose the schedule change, unless seeking unpaid time off. Sounds ok so far, but watch this: the request does not need to be in writing but as soon as is practicable, and no later than the second business day after the employee returns to work following the conclusion of the temporary change to the work schedule, the employee must submit the request in writing, indicating the date for which the change was requested and that it was due to the employee’s personal event. You read that right–the written request is due after the schedule change has been completed. And there are no consequences if the employee fails to comply with this procedural requirement.
If the employee does feel like making the after the fact request, the employer must respond in writing within 14 days. The employer’s response can: (a) consent to the already occurred schedule change, (b) mandate that the schedule change be treated as an unpaid leave (which is not a denial) or (c) deny the employee the requested change which had taken place sometime in the prior 2 weeks. Is it just us, or does it seem like City Council members have been doing some personal research on the legalizing recreational weed issue?
The only employers exempt from compliance: the television and motion picture industries. We don’t get it. Let us know if you do.
Penalties for an employer’s failure to comply with this new law start at $500; failure to understand it is free.