Predictable schedules and fair workweeks: New York City, NY
MORE ABOUT THE STRATEGY USED IN THIS CASE STUDY Protecting worker well-being
At-a-Glance
Summary
After the 2008 Financial Crisis, front-line low-wage workers in New York City increasingly called attention to exploitative and unfair labor practices. Outreach to worker advocacy groups and unions revealed the importance of adopting a predictable scheduling law. In 2016, the Community Service Society released a report detailing the burdens that unpredictable scheduling practices imposed on low-income workers in New York City, further building the case for action.
In 2017, New York City passed the Fair Workweek Law, which required employers to provide fast-food workers with their schedules 14 days in advance. To address employers’ need for flexibility, the law allows businesses to change schedules within two weeks as long as workers are compensated. The Office of Labor Policy and Standards administers and enforces the law’s provisions.
Keys to the law’s success included prioritization from city leaders, which built momentum to overcome opposition from the restaurant industry; using teams of attorneys and data scientists to monitor compliance, which makes investigations more efficient; efforts to raise awareness, which ensure workers know how and when to file complaints; and a policy design that affords businesses flexibility while incentivizing compliance through penalties.
Challenges to the law’s success included legal opposition from restaurants, technological asymmetry between the City and restaurants, limited use of private litigation against employers, and disruptions caused by COVID-19.
Results and accomplishments
$3.1M
Between 2018 and 2021, the NYC Department of Consumer & Worker Protection secured nearly $2.6 million in restitution and another $500,000 in civil penalties for New York City fast-food and retail workers covered by the city’s Fair Workweek Law.
4,034
Between 2018 and 2021, 4,034 workers in New York City received an average of nearly $650 in restitution for Fair Workweek violations.
251
Between 2018-2021, DCWP opened 251 investigations based on 403 complaints filed under the NYC Fair Workweek Law.
- Securing millions of dollars for thousands of workers: Since the law went into effect in 2017, DCWP has secured more than $2.6 million in restitution and penalties for more than 4,000 workers. As more workers become familiar with the law and the investigative process continues to be refined, DCWP is well positioned to increase both the restitution figures and the number of workers benefiting in the coming years.
- Shedding light on unfair labor practices: Enforcement of New York City’s Fair Workweek Law has garnered considerable national media attention, including investigations and lawsuits involving major restaurant chains, such as Chipotle, McDonald’s, Subway, and others.
- Serving as a national model for local labor protections: As one of the most comprehensive fair scheduling laws of its kind, including robust enforcement, New York City’s Fair Workweek Law now serves as a model for local government leaders evaluating similar legislation. In particular, OLPS’s investigative model and staffing practices, which incorporate both data scientists and attorneys, have been studied by other jurisdictions
Overview
What was the challenge?
- Patterns of mistreatment for hourly workers: As the country recovered from the 2007-2008 Financial Crisis, fast-food workers in New York City increasingly called attention to exploitative and unfair labor practices, especially among retailers and fast-food chains. A 2009 NELP study estimated that in Chicago, Los Angeles, and New York City, 26 percent of front-line low-wage workers were paid below the minimum wage; meanwhile, 19.1 percent did not receive the overtime pay to which they were entitled.
- Momentum builds for increased worker protections: In response to the NELP study and several other reports, labor groups in New York City called for new worker protections to be written into law. In 2014, the new Mayoral administration prioritized advancing worker protection legislation (especially within the fast-food industry), such as the Paid Sick Leave Law. Two years later, recognizing the need for increased enforcement capacity within the Department of Consumer and Worker Protection, the de Blasio administration created the Office of Labor Policy & Standards to enforce local worker protection laws.
- Worker engagement reveals need for predictable scheduling law: After soliciting input on legislative priorities from a range of worker advocacy groups and unions like 32BJ SEIU, the Mayor’s office zeroed in on advancing fair workweek legislation. At the time, predictable scheduling laws were being implemented in several other cities across the county, like Seattle and San Francisco.
- Worker survey pushes leaders toward action: As city leaders debated the merits of a fair workweek law, the Community Service Society, a leading New York nonprofit seeking to alleviate poverty, published a report demonstrating the severe burdens that unpredictable scheduling practices imposed on low-income workers in New York City. These included reduced access to basic needs, like paying rent and eating three meals per day. The report generated significant media attention, thus building additional momentum around predictable scheduling.
What was the solution?
- Legally mandating predictable schedules for workers: Passed by New York City Council and signed by Mayor Bill De Blasio in 2017, the Fair Workweek Law is anchored by the requirement for employers to provide fast-food workers with their schedules 14 days in advance. The goal of the law is to ensure that workers have predictable schedules and access to more hours.
- Premium pay for changes within two weeks of a scheduled shift: To address employer needs for flexibility, the Fair Workweek Law includes a provision that enables businesses to change schedules within two weeks, as long as workers are compensated. The less notice workers receive, the more they are paid as compensation (ranging from $10-$75 per change). This covers all types of changes, including adding hours, reducing hours, and moving shifts.
- OLPS writes the rules, enforces the law: While the law was passed through New York City Council, the Office of Labor Policy & Standards (OLPS), which is housed within the NYC Department of Consumer and Worker Protection (DCWP), wrote the rules needed for enforcement. For instance, the law calls for record-keeping using generic documentation standards. OLPS determined which specific documents New York fast-food chains had to maintain. As the agency responsible for the law’s enforcement, OLPS also investigates worker complaints and pursues legal action on their behalf. Each investigation is assigned an OLPS attorney; more complex cases are also analyzed by an OLPS data scientist.
- No termination without just cause: As the Fair Workweek Law continued to evolve, worker groups and city policy staff collaborated to add a “just cause” provision in July 2021. The rule prohibits employers from firing a worker without cause after a 30-day probation period. Additionally, before terminating a worker, employers must provide a path to retaining employment, including retraining and disciplinary warnings.
- Advancing predictable scheduling through City Council: Local government leaders, including the mayor and numerous City Council members, came to a consensus that legislation would be the most effective mechanism to ensure workers received predictable schedules. With OLPS already in place to administer and enforce worker protection laws, City Council members worked closely with 32BJ and other worker groups to design the fair workweek legislation. They also consulted with staff from San Francisco’s Office of Labor Standards Enforcement, which had been enforcing the jurisdiction’s predictable scheduling law since 2014. In March 2017, New York City Council passed the Fair Workweek Law nearly unanimously (46-4).
What factors drove success?
- Prioritization from city leaders: Local government leaders across New York City, including the Mayor and City Council members such as Brad Lander and Corey Johnson, vocally supported the passage of the Fair Workweek Law. This built enough momentum to overcome significant opposition from the restaurant industry, while also raising awareness of the law among both employers and workers.
- Conducting multidisciplinary investigations: Initially, OLPS conducted Fair Workweek investigations using only attorneys, an approach that had limited success in unveiling systemic violations embedded in a restaurant’s standard scheduling practices. Recognizing this challenge, OLPS shifted to interdisciplinary teams — including both attorneys and data scientists — for larger or more complex cases. As a result, OLPS is now able to review a restaurant chain’s compliance on a much broader scale through advanced statistical methods and analysis. This can lead to more efficient investigations and more substantial settlements.
- Raising awareness among workers: Because enforcement of the Fair Workweek Law, like other worker protections, is most often complaint-driven, worker awareness of the enforcement agency is crucial. To address this, DCWP conducts integrated outreach and education campaigns to raise awareness of rights and resources, including targeted ads in multiple languages, visits to restaurants to discuss worker protection laws with staff, and meetings with franchise owners. Additionally, by including workers in the legislative design process, policymakers cultivated strong buy-in from key labor organizations with large constituencies, which helped to further raise awareness.
- Building multiple pathways to compliance: The New York City Fair Workweek Law prioritizes premium pay for scheduling changes, rather than an outright ban on the practice, which employers and workers have indicated can be necessary in certain situations. Still, penalties for repeated violations escalate quickly, leading to a strong incentive for compliance among employers while still preserving the capacity for flexibility.
What were the major obstacles?
- Legal opposition from restaurants: In an effort to derail the law’s implementation, several restaurant industry groups, led by the National Restaurant Association, challenged the law in court on the grounds that state labor laws already addressed the same workers, and thus the city ordinances could not legally supersede the state’s. Ultimately, a February 2020 state court ruling upheld the law.
- Technological asymmetry between restaurants and city: Many large restaurant chains subject to the Fair Workweek Law rely on sophisticated algorithms and proprietary software for scheduling. If a city investigator equipped with the appropriate technical tools could evaluate these algorithms, it could facilitate a simpler process for confirming compliance or revealing violations. Currently, however, DCWP relies primarily on analog reviews of individual complaints.
- Limited use of private litigation against employers: Initially, DCWP anticipated that some workers would hire private lawyers to sue employers for Fair Workweek violations. This would shift the burden of developing the facts of the case and litigating it away from DCWP attorneys. However, in practice, workers rarely pursue this course of action. In many cases, this is likely the result of forced arbitration agreements, which are common in the fast-food industry.
- COVID derails enforcement momentum: Just weeks after the Fair Workweek Law was upheld in court, the COVID-19 pandemic struck, leaving many fast-food workers unsure of their employment status, let alone their schedules. The pandemic also caused DCWP to postpone a public awareness campaign as it shifted focus to promoting paid sick leave. The Fair Workweek Law has remained in effect throughout the pandemic, however.
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Timeline
A team of researchers from NELP, UCLA, CUNY, and the University of Illinois at Chicago publish a groundbreaking study showing that workers in Chicago, Los Angeles, and New York City have been systematically deprived of their right to a minimum wage, overtime hours, meal breaks, and reasonable working conditions. “The sheer breadth of the problem,” the researchers wrote, “spanning key industries in the economy, as well as its profound impact on workers, entailing significant economic hardship, demands urgent attention.” Quickly, the report gains attention from local policymakers across the county.
As non-unionized workers around the United States call for fair pay, better working conditions, and increased enforcement of labor laws, 200 employees at major fast-food chains in New York City walk off their shifts. Over the next several years, the Fight for 15 organizes strikes for thousands of non-unionized workers across the country.
New York becomes the largest of seven American cities requiring private and nonprofit employers to provide workers with paid sick leave (one hour of leave for every 30 hours worked). The law extends paid sick leave coverage to 1.4 million New York City workers, in addition to the 2.5 million that already received paid sick leave from employers voluntarily.
With worker rights at the forefront of New York City politics, Bill de Blasio is elected mayor. Early in his tenure, he works with New York City Council members to expand the paid sick leave law to cover more workers. The law goes into effect in April 2014.
As cities across the country evaluate increased protections for hourly workers, the San Francisco Board of Supervisors passes the Formula Retail Employee Rights Ordinances. The ordinances include two weeks’ notice of schedules, premium pay for scheduling changes, and access to more hours for current employees before hiring new staff. Other cities, including New York City, begin to consider advancing a similar law.
With half of its members as sponsors, New York City Council passes a bill to create the Office of Labor Policy & Standards. One of its primary responsibilities is to enforce the Paid Sick Leave Law. Less than a year later, Mayor de Blasio appoints a new commissioner of the Department of Consumer Affairs, Lorelei Salas, and establishes OLPS under her supervision.
As national attention on unpredictable scheduling increases, the Community Service Society publishes a detailed analysis based on a scientific survey of 1,717 New York City workers. The report shows that restaurant and retail workers are the most affected by unpredictable schedules. New York City leaders increase their calls for a fair workweek law to pass through City Council.
With broad support from local government leaders, 37 of New York City’s 51 City Council members sponsor the Fair Workweek Law. Mayor de Blasio signs the bill into law shortly thereafter. The law provides new protections to 65,000 hourly employees in the fast-food industry.
As the Fair Workweek Law goes into effect, OLPS ramps up enforcement. At the same time, the office begins an outreach and education campaign to reach workers and employers. In its first full year, OLPS investigates 93 Fair Workweek complaints, resolving cases in an average of 126 days.
After investigating complaints on behalf of more than 30 Chipotle employees at five Brooklyn locations for over a year, DCWP sues the restaurant chain for at least $1 million in restitution and penalties. The city continues investigating other complaints from Chipotle employees across the city and increasingly leverages its research team to conduct data-driven analyses of the company’s scheduling practices.
The New York State Supreme Court upholds the Fair Workweek Law after restaurant industry groups file legal challenges on the grounds that state law would supersede the city’s. "In New York City, knowing when you're working and planning accordingly is a right," Mayor Bill de Blasio said. "We fought hard to get workers the peace of mind they deserve and will continue fighting for workers every time anyone tries to take it away."
As the mayor and City Council members continue to iterate on the predictable scheduling law, they design an amendment preventing employers from firing workers or reducing their hours by more than 15 percent without just cause or a legitimate financial explanation. The amendment adds additional protection, often reserved for unionized employees covered by a collective bargaining agreement, to hourly workers.
The city reaches its largest ever worker protection settlement, with 13,000 New York City Chipotle workers employed between November 2017 and April 2022 entitled to $50 for each week they worked during that period. The settlement covers violations of both the Fair Workweek Law and New York City's Paid Safe and Sick Leave Law.
Implementation process
How did leaders confront the problem?
- Shedding light on the fast-food industry: For years, hourly workers in the fast-food and retail industries reported that employers frequently changed their schedules at the last minute and committed wage theft. As some jurisdictions began to consider enacting new worker protection laws in the late 2000s, several different organizations, including NELP, the Center for Popular Democracy, and the Economic Policy Institute, published comprehensive studies demonstrating this pattern of mistreatment.
- A new administration intent on change: Elected in 2013, the de Blasio administration made worker protections for fast-food and retail workers a priority. Once in office, the administration championed a $15 minimum wage, paid sick leave, and a stronger enforcement mechanism for labor laws.
- Launching the Office of Labor Policy & Standards: Seeking to boost the city’s enforcement capacity of existing worker protection laws, New York City Council created the Office of Labor Policy & Standards in 2015. The de Blasio administration then chose to house the office within the Department of Consumer Affairs. The department changed its name to the Department of Consumer and Worker Protection in 2019 to reflect its expanded mission to protect workers.
- Passing the Fair Workweek Law: Building on sustained momentum from paid sick leave in 2013 and the creation of OLPS in 2015, New York City policymakers turned their attention to developing predictable scheduling laws similar to those passed in San Francisco. Working in close collaboration with 32BJ and other worker groups, New York City Council passed the Fair Workweek Law nearly unanimously.
How was the strategy designed?
- Predictable schedules, approved by workers: Recognizing that workers needed greater stability and predictability in their schedules, New York City enacted the Fair Workweek Law in 2017. The law requires restaurants to provide fast-food workers with 14 days’ advance notice of weekly schedules. Additionally, in the case of a proposed schedule change (including hour reductions or increases), workers have the right to accept or reject the change without fear of penalty.
- Premium pay for flexibility: To ensure that workers and businesses have a reasonable degree of flexibility, the law allows employers to schedule workers on short notice — as long as workers are compensated accordingly (between $10-$75 per change, depending on how soon the shift is). This protection also covers the practice of “clopenings,” in which workers are scheduled to close a restaurant and then open it the next morning (less than 11 hours between shifts). In such situations, the worker must provide written consent and is entitled to $100 in premium pay.
- A pathway to full-time employment: In order to facilitate stable employment and increase access to hours, the law includes a requirement that businesses must offer available shifts to current employees before hiring new staff; a gradual disciplinary structure that requires employers to provide retraining and warning before firing; termination only with just cause; and, following layoffs, a rule requiring employers to assign newly available shifts to the workers most recently terminated.
- Building on existing enforcement capacity: To ensure the law had a sufficiently strong enforcement mechanism, City Council expanded OLPS’s portfolio to include the Fair Workweek Law in 2017. Among its Fair Workweek-related duties, OLPS is responsible for fielding and investigating complaints, obtaining restitution and other relief for workers, engaging with employers and workers to raise awareness and answer questions, and drafting the necessary rules and regulations to implement the law (such as identifying documents required for record-keeping).
- External support to draft legislation: In an effort to maximize its impact, legislators drafted the Fair Workweek Law in close consultation with 32BJ and other external experts, such as NELP. Additionally, New York City policy staff consulted with policymakers in San Francisco and Emeryville, California to shape the legislation. As the law continues to evolve, OLPS regularly engages with New York City workers and employers to identify areas for improvement.
How was the approach funded?
- DCWP funded through City Council allocation: DCWP is funded through an annual budget allocation of just over $40 million. More than 90 percent of funding comes directly from the city, with small shares of funding from the state and an intra-city fund. DCWP does not allocate budget line items to enforcement of specific laws. Enforcement of a range of worker protection laws, including Fair Workweek and Paid Sick and Safe Leave, fall under DCWP’s jurisdiction.
- Covering personnel costs: Nearly two thirds of DCWP’s funding is budgeted for staff salaries and benefits. The department has roughly 400 budgeted positions, including 33 within OLPS. The department’s remaining costs include contractual services, supplies and materials (including for marketing), and equipment.
How was the plan implemented?
- Building enforcement capacity within 180-day implementation period: OLPS had six months between the law’s passage and when it went into effect to prepare for its enforcement. During that period, OLPS created new case handling processes and trained new investigators (attorneys) and intake specialists to receive and handle complaints from workers. For 2021, OLPS had 33 staff members: 13 investigators, 10 attorneys, 4 researchers, 5 intake specialists, and 1 outreach and advocacy specialist.
- Drafting the rules: Also during the 180-day implementation period, OLPS attorneys drafted rules that helped to clarify generic language used in the law. For instance, OLPS mandated and distributed information to employers on which documents they had to maintain, the languages in which notices of workers’ rights must be posted in public, and the dollar amounts for penalties.
- Outreach and education campaigns: To ensure both employers and workers were aware of the law once it went into effect, OLPS staff partnered with worker groups and restaurant industry groups to hold educational events (often with franchise owners of major chains), distribute FAQs and public notices, and conduct “business walks,” during which staff would enter a restaurant and explain the law.
How was the approach measured and refined?
- Using data scientists to revamp investigations: As OLPS began to receive individual complaints, investigators identified that by evaluating them together, they could uncover organizational cultures of non-compliance. In response, OLPS began building up its team of data scientists, who could analyze company-wide scheduling data and identify violations. DCWP continues to refine its approach to incorporating data science into its investigations, and its team of data scientists continues to grow.
- Adding “just-cause” termination protection: Seeking to build on one of the law’s stated goals, creating a path to full-time employment, New York City passed legislation in July 2021 stipulating that fast-food workers can now only be fired with cause or if the business is facing significant financial hardship. The amendment also includes intermediary steps before termination, such as retraining and warnings.
- Eliminating the good-faith estimate in response to employer feedback: Initially, the Fair Workweek Law included a requirement for employers to provide a “good-faith” estimate of a worker’s weekly hours and schedules at the point of hiring. Based on enforcement experience, OLPS recognized that there was low compliance and that the provision was unreasonably burdensome on employers. As a result, when it helped City Council revise the law, OLPS advised policymakers to remove the provision.
- Expanding protections for service industry workers: New York City Council continues to evaluate additional measures to ensure workers, especially in the food service industry, are treated fairly. For instance, in September 2021, the Council passed a group of bills that set minimum pay for app-based delivery workers like DoorDash and UberEats.