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S01132 Summary:

BILL NOS01132
 
SAME ASSAME AS A02448
 
SPONSORBENJAMIN
 
COSPNSR
 
MLTSPNSR
 
Add Art 5-A 180 - 187, Lab L
 
Relates to the schedules that work act.
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S01132 Actions:

BILL NOS01132
 
01/11/2019REFERRED TO LABOR
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S01132 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1132
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    January 11, 2019
                                       ___________
 
        Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Labor
 
        AN ACT to amend the labor law, in relation to the  schedules  that  work
          act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The labor law is amended by adding a  new  article  5-A  to
     2  read as follows:
     3                                 ARTICLE 5-A
     4                           SCHEDULES THAT WORK ACT
     5  Section 180. Short title.
     6          181. Definitions.
     7          182. Right  to  request  and  receive a flexible, predictable or
     8                 stable work schedule.
     9          183. Requirements for reporting time pay, split shift  pay,  and
    10                 advance notice of work schedules for retail, food service
    11                 or cleaning employees.
    12          184. Prohibited acts.
    13          185. Civil action.
    14          186. Other legal requirements.
    15          187. Savings clause.
    16    §  180.  Short  title. This article shall be known and may be cited as
    17  the "schedules that work act".
    18    § 181. Definitions. As used in this article, the following terms shall
    19  have the following meanings:
    20    1. "Bona fide business reason" means:
    21    (a) the identifiable  burden  of  additional  costs  to  an  employer,
    22  including the cost of productivity loss, retraining or hiring employees,
    23  or transferring employees from one facility to another facility;
    24    (b) a significant detrimental effect on the employer's ability to meet
    25  organizational needs or customer demand;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01012-01-9

        S. 1132                             2
 
     1    (c)  a significant inability of the employer, despite best efforts, to
     2  reorganize work among existing (as of the date  of  the  reorganization)
     3  staff;
     4    (d) a significant detrimental effect on business performance;
     5    (e)  insufficiency  of work during the periods an employee proposes to
     6  work;
     7    (f) the need to balance competing scheduling requests when it  is  not
     8  possible  to  grant  all such requests without a significant detrimental
     9  effect on the employer's ability to meet organizational needs; or
    10    (g) such other reason as may be specified by the commissioner.
    11    2. "Career-related educational or training program"  means  an  educa-
    12  tional  or  training  program  or  program of study offered by a public,
    13  private, or nonprofit career and technical education school, institution
    14  of higher education, or other entity that provides  academic  education,
    15  career  and  technical education, or training (including remedial educa-
    16  tion or English as a second language, as appropriate), that is a program
    17  that leads to a recognized postsecondary credential and provides  career
    18  awareness information.
    19    3.  "Caregiver" means an individual with the status of being a signif-
    20  icant provider of:
    21    (a) ongoing care or education, including responsibility  for  securing
    22  the ongoing care or education, of a child; or
    23    (b)  ongoing  care,  including responsibility for securing the ongoing
    24  care, of:
    25    (i) a person with a serious  health  condition  who  is  in  a  family
    26  relationship with the individual; or
    27    (ii) a parent of the individual, who is age sixty-five or older.
    28    4.  "Child" means a biological, adopted, or foster child, a stepchild,
    29  a legal ward, or a child of a person standing in loco parentis  to  that
    30  child, who is:
    31    (a) under age eighteen; or
    32    (b)  age  eighteen  or  older  and incapable of self-care because of a
    33  mental or physical disability.
    34    5. "Domestic partner" means the individual recognized as  being  in  a
    35  relationship  with  an  employee under any domestic partnership or civil
    36  union entered into pursuant to the laws of the United States or  of  any
    37  state,  local  or  foreign  jurisdiction,  or registered as the domestic
    38  partner of the employee with any registry maintained by the employer  of
    39  either party or any state, municipality, or foreign jurisdiction.
    40    6. "Employee" means any person employed for hire by an employer in any
    41  employment.
    42    7.  "Employer" means a state agency, officer, or department, a unit of
    43  local government, a school district, an  individual,  a  corporation,  a
    44  partnership, an association, or a nonprofit organization employing fifty
    45  or more employees in the state of New York.
    46    8. "Family relationship" means a relationship with:
    47    (a)  a  child, spouse, domestic partner, parent, grandchild, grandpar-
    48  ent, sibling, or parent of a spouse or domestic partner; or
    49    (b) any individual related to the employee involved by blood or affin-
    50  ity, whose close association with the employee is the  equivalent  of  a
    51  family relationship described in paragraph (a) of this subdivision.
    52    9. "Minimum number of expected work hours" means the minimum number of
    53  hours an employee will be assigned to work on a weekly or monthly basis.
    54    10.  "Nonexempt  employee"  means an employee who is not employed in a
    55  bona  fide  executive,  administrative,  or  professional  capacity,  as

        S. 1132                             3

     1  defined  for  purposes  of section 213(a)(1) of the Fair Labor Standards
     2  Act of 1938 (29 U.S.C. 213(a)(1)).
     3    11.  "Part-time  employee"  means  an  individual who works fewer than
     4  thirty hours per week on average during any one-month period.
     5    12. "Retail, food service, or cleaning employee" means  an  individual
     6  nonexempt  employee who is employed in any of the following occupations,
     7  as described by the Bureau of  Labor  Statistics  Standard  Occupational
     8  Classification System (as in effect on the day before the effective date
     9  of this article):
    10    (a)  retail  sales  occupations consisting of occupations described in
    11  41-1010 and 41-2000, and all subdivisions thereof, of such System, which
    12  includes first-line  supervisors  of  sales  workers,  cashiers,  gaming
    13  change  persons  and  booth  cashiers,  counter and rental clerks, parts
    14  salespersons, and retail salespersons.
    15    (b) food preparation and serving related occupations as  described  in
    16  35-0000,  and  all  subdivisions thereof, of such System, which includes
    17  supervisors of food preparation and  serving  workers,  cooks  and  food
    18  preparation  workers,  food and beverage serving workers, and other food
    19  preparation and serving related workers.
    20    (c) building cleaning occupations as described in 37-2011, 37-2012 and
    21  37-2019 of such System, which includes janitors and cleaners, maids  and
    22  housekeeping cleaners, and building cleaning workers.
    23    13.  "Serious  health condition" means an illness, injury, impairment,
    24  or physical or mental condition that involves:
    25    (a) inpatient care in a hospital, hospice, or residential medical care
    26  facility; or
    27    (b) continuing treatment by a health care provider.
    28    14. "Split shift" means a schedule of daily hours in which  the  hours
    29  worked are not consecutive, except that:
    30    (a)  a  schedule in which the total time out for meals does not exceed
    31  one hour shall not be treated as a split shift; and
    32    (b) a schedule in which the break in  the  employee's  work  shift  is
    33  requested by the employee shall not be treated as a split shift.
    34    15.  "Work  schedule"  means those days and times within a work period
    35  when an employee is required by an employer to perform the duties of the
    36  employee's employment for which the employee will receive compensation.
    37    16. "Work schedule change" means any  modification  to  an  employee's
    38  work  schedule,  such as an addition or reduction of hours, cancellation
    39  of a shift, or a change in the date or time  of  a  work  shift,  by  an
    40  employer.
    41    17.  "Work shift" means the specific hours of the workday during which
    42  an employee works.
    43    § 182. Right to request and receive a flexible, predictable or  stable
    44  work  schedule.  1.  An employee may apply to the employee's employer to
    45  request a change in the terms  and  conditions  of  employment  as  they
    46  relate to:
    47    (a) the number of hours the employee is required to work or be on call
    48  for work;
    49    (b)  the times when the employee is required to work or be on call for
    50  work;
    51    (c) the location where the employee is required to work;
    52    (d) the amount of notification the employee receives of work  schedule
    53  assignments; and
    54    (e)  minimizing  fluctuations  in  the number of hours the employee is
    55  scheduled to work on a daily, weekly, or monthly basis.

        S. 1132                             4
 
     1    2. (a) If an employee applies to the employee's employer to request  a
     2  change  in the terms and conditions of employment as set forth in subdi-
     3  vision one of this section, the employer shall engage in a timely,  good
     4  faith  interactive  process with the employee that includes a discussion
     5  of potential schedule changes that would meet the employee's needs.
     6    (b) Such process shall result in:
     7    (i) either granting or denying the request;
     8    (ii)  in  the  event  of  a  denial,  considering  alternatives to the
     9  proposed change that might meet the employee's  needs  and  granting  or
    10  denying  a request for an alternative change in the terms and conditions
    11  of employment as set forth in subdivision one of this section; and
    12    (iii) in the event of a denial, stating the reason for denial, includ-
    13  ing whether any such reason is a bona fide business reason.
    14    (c) If information provided by the employee  making  a  request  under
    15  this  section  requires  clarification,  the employer shall explain what
    16  further information is needed and give the employee reasonable  time  to
    17  produce the information.
    18    3. If an employee makes a request for a change in the terms and condi-
    19  tions  of  employment  as  set  forth in subdivision one of this section
    20  because of a serious health  condition  of  the  employee,  due  to  the
    21  employee's  responsibilities  as  a  caregiver, or due to the employee's
    22  enrollment in a career-related educational or training program, or if  a
    23  part-time  employee  makes  a  request  for  such  a change for a reason
    24  related to a second job, the employer shall grant  the  request,  unless
    25  the employer has a bona fide business reason for denying the request.
    26    4. If an employee makes a request for a change in the terms and condi-
    27  tions of employment as set forth in subdivision one of this section, for
    28  a reason other than those reasons set forth in subdivision three of this
    29  section,  the  employer  may deny the request for any reason that is not
    30  unlawful. If the employer denies such  a  request,  the  employer  shall
    31  provide  the  employee with the reason for the denial, including whether
    32  such reason is a bona fide business reason.
    33    5. An employee may voluntarily agree with employee's  employer  to  be
    34  contacted  by  employer  when  employee is needed to work but not on the
    35  employer's work schedule.
    36    § 183. Requirements for reporting  time  pay,  split  shift  pay,  and
    37  advance  notice  of  work schedules for retail, food service or cleaning
    38  employees. 1. An employer shall pay a retail, food service, or  cleaning
    39  employee:
    40    (a) for at least four hours at the regular rate of pay of the employee
    41  involved  for  each  day  on which the retail, food service, or cleaning
    42  employee reports for work, as required by the  employer,  but  is  given
    43  less  than  four  hours of work, except that if the employee's scheduled
    44  hours for a day are less than four hours, such employee  shall  be  paid
    45  for  the  scheduled hours of the employee involved for that day if given
    46  less than the scheduled hours of work; and
    47    (b) for at least one hour at the regular rate of pay of  the  employee
    48  involved  for each day the retail, food service, or cleaning employee is
    49  given specific instructions to contact  the  employer  of  the  employee
    50  involved, or wait to be contacted by the employer, less than twenty-four
    51  hours  in  advance  of  the start of a potential work shift to determine
    52  whether the employee must report to work for such shift.
    53    2. An employer shall pay a retail, food service, or cleaning  employee
    54  for  one  additional hour at the employee's regular rate of pay for each
    55  day during which the employee works a split shift.

        S. 1132                             5
 
     1    3. (a) On or before a new retail, food service, or cleaning employee's
     2  first day of work, the employer shall inform the employee in writing  of
     3  the  work  schedule  of  the employee involved and the minimum number of
     4  expected work hours the employee will be assigned to work per month.
     5    (b)  Except  as  provided  in  paragraph (c) of this subdivision, if a
     6  retail, food service, or cleaning employee's work schedule changes  from
     7  the  work  schedule of which the employee was informed pursuant to para-
     8  graph (a) of this subdivision, the employer shall provide  the  employee
     9  with  the new work schedule of the employee involved not less than four-
    10  teen days before the first day of the new work schedule. If the expected
    11  minimum number of work hours that a retail,  food  service  or  cleaning
    12  employee  will be assigned changes from the number of which the employee
    13  involved was informed pursuant to paragraph (a) of this subdivision, the
    14  employer shall also provide notification of that change, not  less  than
    15  fourteen  days  in  advance  of  the  first day this change will go into
    16  effect. Nothing in this paragraph shall  be  construed  to  prohibit  an
    17  employer from providing greater advance notice of a retail, food service
    18  or  cleaning employee's work schedule than is required under this subdi-
    19  vision.
    20    (c) An employer may make work schedule changes as needed, including by
    21  offering additional hours of work to retail, food  service  or  cleaning
    22  employees  beyond  those  previously scheduled, but an employer shall be
    23  required to provide one extra hour of pay at the employee's regular rate
    24  for each shift that is changed with less than twenty-four hours' notice,
    25  except in the case of the need to  schedule  the  employee  due  to  the
    26  unforeseen unavailability of a retail, food service or cleaning employee
    27  previously scheduled to work that shift.
    28    (d)  The  notifications  required under paragraphs (a) and (b) of this
    29  subdivision shall be made to the employee involved in  writing.  Nothing
    30  in  this  paragraph  shall  be construed as prohibiting an employer from
    31  using any additional means of notifying a retail, food service or clean-
    32  ing employee of the work schedule of the employee involved.
    33    (e) Every employer employing any  retail,  food  service  or  cleaning
    34  employee  shall  post  the  schedule and keep it posted in a conspicuous
    35  place in every establishment where such employee is employed  so  as  to
    36  permit  the employee involved to observe readily a copy thereof.  Avail-
    37  ability of that schedule by electronic means accessible by  all  retail,
    38  food  service or cleaning employees of that employer shall be considered
    39  compliance with this paragraph.
    40    (f) Nothing in this section shall be construed to prevent an  employer
    41  from  allowing  a  retail,  food service or cleaning employee to work in
    42  place of another employee who has been scheduled to  work  a  particular
    43  shift  as  long as the change in schedule is mutually agreed upon by the
    44  employees. An employer shall not be subject to the requirements of para-
    45  graph (b) or (c) of this subdivision for such voluntary shift trades.
    46    4. Any pay provided to an employee pursuant to subdivisions one or two
    47  or paragraph (c) of subdivision three of this section shall be  included
    48  in  the employee's regular paycheck. The employer shall identify, in the
    49  corresponding written wage statement or pay stub, the  total  number  of
    50  hours of additional pay provided for the pay period involved and whether
    51  the  additional  pay  was  due  to  the requirements of paragraph (a) of
    52  subdivision one of this section, the requirements of  paragraph  (b)  of
    53  subdivision  one of this section, the requirements of subdivision two of
    54  this section, or the requirements of paragraph (c) of subdivision  three
    55  of this section.

        S. 1132                             6
 
     1    5.  The requirements in subdivisions one through three of this section
     2  shall not apply during periods when regular operations of  the  employer
     3  are suspended due to events beyond the employer's control.
     4    §  184.  Prohibited  acts. 1. It shall be unlawful for any employer to
     5  interfere with, restrain, or deny the exercise or the attempt  to  exer-
     6  cise,  any  right  of  an  employee  as set forth in section one hundred
     7  eighty-two of this article or of a  retail,  food  service  or  cleaning
     8  employee  as set forth in section one hundred eighty-three of this arti-
     9  cle.
    10    2. It shall be unlawful for any employer  to  discharge,  threaten  to
    11  discharge,  demote,  suspend,  reduce  work  hours of, or take any other
    12  adverse employment action against any employee in retaliation for  exer-
    13  cising  the  rights  of  an  employee under this article or opposing any
    14  practice made unlawful by this article. For the purposes of section  one
    15  hundred  eighty-two  of  this  article,  such  retaliation shall include
    16  taking an adverse employment action against any employee on the basis of
    17  that employee's eligibility  or  perceived  eligibility  to  request  or
    18  receive a change in the terms and conditions of employment, as described
    19  in such section, on the basis of a reason set forth in subdivision three
    20  of such section.
    21    3.  It  shall  be unlawful for any person to discharge or in any other
    22  manner discriminate against any individual because such individual:
    23    (a) has filed any charge, or has instituted or caused to be instituted
    24  any proceeding, under or related to this article;
    25    (b) has given or is about to give, any information in connection  with
    26  any  inquiry  or  proceeding  relating  to any right provided under this
    27  article; or
    28    (c) has testified, or is about to testify, in any inquiry or  proceed-
    29  ing relating to any right provided under this article.
    30    §  185.  Civil  action.  1.  Any person denied benefits due under this
    31  article or aggrieved by an action made unlawful by  this  article  shall
    32  have  a  cause  of  action  in any court of appropriate jurisdiction for
    33  damages, including any  wages,  salary,  employment  benefits  or  other
    34  compensation  denied  or  lost  to  such  individual  by  reasons of the
    35  violation and/or any actual monetary losses sustained by the  individual
    36  as  a direct result of the violation, as well as interest on such amount
    37  calculated at the prevailing rate, and such equitable relief as  may  be
    38  appropriate, including employment, reinstatement, and promotion, togeth-
    39  er  with  costs and such reasonable attorneys' fees as may be allowed by
    40  the court.
    41    2. On behalf of any employee denied benefits due under this article or
    42  aggrieved by an action made unlawful by this article,  the  commissioner
    43  may  bring  a  legal  action  necessary  to  collect  damages due to the
    44  violation, and the employer shall be required to pay such damages.
    45    3. Notwithstanding any other provision of law, an  action  to  recover
    46  upon  liability  imposed  by  this  article must be commenced within two
    47  years.
    48    § 186. Other legal requirements.  1.  This  article  provides  minimum
    49  requirements  and shall not be construed to preempt, limit, or otherwise
    50  affect the applicability of  any  other  law,  regulation,  requirement,
    51  policy,  or standard that provides for greater rights for employees than
    52  are required in this article.
    53    2. Nothing in this article shall be construed as creating or  imposing
    54  any requirement in conflict with any federal or state law, rule or regu-
    55  lation,  nor  shall anything in this article be construed to diminish or

        S. 1132                             7
 
     1  impair the rights of an employee or employer under any valid  collective
     2  bargaining agreement.
     3    §  187. Savings clause. If any provision of this article or the appli-
     4  cation thereof to any person, employer, occupation  or  circumstance  is
     5  held  invalid,  the remainder of the article and the application of such
     6  provision to other persons,  employees,  occupations,  or  circumstances
     7  shall not be affected thereby.
     8    § 2. This act shall take effect on the one hundred eightieth day after
     9  it  shall have become a law. Effective immediately, the addition, amend-
    10  ment and/or repeal of any rules or regulations necessary for the  imple-
    11  mentation of this act on its effective date are authorized to be made on
    12  or before such date.
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