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Restaurants lodge court challenge of predictive scheduling

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A coalition of restaurant groups have filed a legal challenge of New York City’s model advance-scheduling law, arguing in a complaint filed with the state’s supreme court that the measure has illegally cost quick-service operators hundreds of thousands of dollars in penalties while limiting their ability to hire.

The measure seeks to have the regulations overturned on the grounds they are pre-empted by state law. The scheduling component of the law requires quick-service restaurants to set staff schedules at least two weeks in advance and to pay a penalty for any changes made afterward.

Similar predictive-scheduling mandates have been adopted or proposed in a number of jurisdictions across the nation. Most of those are binding on all restaurants, not just quick-service places.

The plaintiffs in the action also contested the scheduling law’s related stipulation that current employees be given extra shifts before new employees are hired. That facet of the measure forces employers to award shifts to employees regardless of their level of competence.

The requirements were part of a package passed in 2017 called the Fair Workweek Law (FWWL), a measure proposed and strongly supported by New York Mayor Bill de Blasio.  The package was intended to halt practices that were viewed as exploitative, such as requiring employees to work a closing shift and then reopen for the morning rush a few hours later, and to provide more income predictability for fast-food workers.

“Under the guise of guaranteeing ‘predictive’ scheduling for restaurant employees, the FWWL has caused great harm to Plaintiffs’ member employers in New York City’s fast food industry, causing them to incur enormous penalties and significant administrative costs, and interfering with their ability to schedule employees so as to best serve the constantly shifting needs of consumers,” the complaint reads.

Enforcement began in November 2017.  The obligations fell on any restaurant that shares a common identity with at least 29 other establishments nationwide.

Qualifying quick-service restaurants are charged $10 for every change made to an employee’s schedule from seven to 14 days before the start of the shift, $20 for every cut in hours or shift cancellation made in that time frame, $45 for any change made between one and seven days before the start of the affected shift and $75 for any change made less than 24 hours before the shift was scheduled to start, including a cancellation of the shift.

The plaintiffs in the measure are the Restaurant Law Center, the litigation arm of the National Restaurant Association; the International Franchise Association; and the New York State Restaurant Association.

Their complaint, filed in the State Supreme Court of the State of New York, requires the City of New York to respond within 30 days.

“None of the harms caused by the FWWL should be permitted to continue, because State law governing workplace schedules of private businesses, including fast food restaurants, has pre-empted the field of workplace scheduling regulation and minimum employee compensation,” the complaint argues.

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