(a) Fast food, retail, and utility safety employers must create and maintain contemporaneous, true, and accurate records documenting compliance with the requirements of the Fair Workweek Law for a period of three years, as specified below.
1. Required records for fast food, retail, and utility safety employers. For fast food, retail, and utility safety employers, such records shall include documents that show:
i. Each employee's first and last name, dates of employment and the last-known phone number, email address, and mailing address provided to the employer;
ii. Actual hours worked by each employee each week, including the date, times, and location of all such hours;
iii. Each work schedule, including the dates, times, and methods by which each work schedule was provided to each employee; and
iv. Each agreement among employees to trade shifts, including the shifts being traded and the names of the employees involved.
2. Required records for fast food employers. For fast food employers only, such records also must include documents that show:
i. Each regular schedule, including the dates, times, and methods of provision to each employee;
ii. Each written request by an employee for a change to a work schedule or for a reduction in hours on the regular schedule, including the date, time, and method of transmission to the employer.
iii. Each written consent by a fast food employee to an addition of hours to a work schedule or to a reduction in hours on the regular schedule, including the date and time when the record was made;
iv. Each instance a schedule change premium was not owed to a fast food employee due to the fast food employee's lateness or absence, including the date of the shift and the reason;
v. Each instance a schedule change premium was not owed to a fast food employee because the employer's operations could not begin or continue as set forth in § 20-1222(c)(1) of the Fair Workweek Law or because the employee received overtime pay for a changed shift, as set forth in § 20-1222(c)(4) of the Fair Workweek Law.
vi. Each schedule change premium and each clopening premium paid to each fast food employee, the shift, work week, or pay period to which the premium corresponds, and the date and amount of each payment;
vii. Each written request or consent by a fast food employee to work a clopening shift, including the date and time when the record was made;
viii. Each regular or on-call shift offered to, accepted by, or awarded to current fast food employees, including the contents of each offer, and the dates, times, and methods by which such shifts were offered, accepted, and awarded.
ix. Each instance an employer was not required to offer a shift to a current fast food employee before hiring new fast food employees because the employer would have been required to pay the current fast food employee overtime pay for the additional shift.
x. All written policies on progressive discipline maintained in accordance with § 20-1272(c) of the Fair Workweek Law and the date and manner in which they were provided to fast food employees, and proof that such policies were received by each fast food employee;
xi. Records of discipline of fast food employees, including to whom the discipline relates, a description of any employment actions associated with the discipline and the dates these actions were taken (for example, application of a disciplinary point, training, increased supervision), the conduct for which the fast food employee was disciplined and any date associated with the conduct, either the fast food employee's acknowledgement of having been informed of the discipline or a supervisor's affirmation that the fast food employee was informed of the discipline and refused to acknowledge it, and the employee's response, if any.
xii. Each Notice of Discharge provided to a fast food employee in accordance with § 20-1272(d) of the Fair Workweek law and the date and method by which the Notice of Discharge was provided to the fast food employee.
xiii. For each discharge based on a bona fide economic reason, records sufficient to show that the discharge was in response to a reduction in volume of production, sales or profits at the fast food establishment, such as documents showing:
(1) The fast food establishment's financial condition, including tax returns, income statements, profit and loss statements, monthly gross revenue schedules, and balance sheets;
(2) The fast food establishment's compliance with government-issued capacity reduction orders or health and safety guidelines or a full or partial closure by order of a government official; or
(3) The fast food employer's inability to operate due to:
(A) Threats to the fast food employees or the fast food employer's property;
(B) The failure of a public utility or the shutdown of public transportation;
(C) A fire, flood or other natural disaster;
(D) A state of emergency declared by the President of the United States, Governor of the state of New York, or Mayor of the City; or
(E) Severe weather conditions that posed a threat to employee safety.
xiv. For each fast food employee discharged based on a bona fide economic reason, their seniority relative to any other such discharged employees, and each offer of reinstatement or restoration of hours pursuant to §§ 20-1241(a)(1) and 20-1272(h) of the Fair Workweek Law, including the date and the method of contact or attempted contact, the days, times and location of the shift(s) offered, and whether the offer was accepted.
3. Required records for retail and utility safety employers. For retail and utility safety employers only, such records also must include documents that show:
i. Each written request by a retail or utility safety employee for time off including the date and time the request was made, and the days and times off requested;
ii. Each written consent by a retail or utility safety employee to work with fewer than 72 hours' notice; and
iii. Each change to a retail employee's work schedule with less than 72 hours' notice that occurred because the employer's operations could not begin or continue as set forth in § 20-1251(b)(3) of the Fair Workweek Law.
iv. Each change to a utility safety employee's work schedule with less than 72 hours' notice that occurred because the utility safety employer was responding to or could not begin or continue operations due to one of the circumstances set forth in § 20-1251(b)(4) of the Fair Workweek Law.
(b) Upon request, a fast food, retail, or utility safety employer must provide a fast food, retail, or utility safety employee with such employee's work schedule for any previous week worked for the past three years within 14 days of the employee's request.
(c) Upon request, a fast food, retail, or utility safety employer must provide a fast food, retail, or utility safety employee with the most current version of the complete work schedule for all employees who work at the same location within one week of the employee's request, provided that an employer may not disclose the work schedule of any employee who has been granted an accommodation based on the employee's status as a survivor of domestic violence, stalking, or sexual assault, where such disclosure would conflict with such accommodation.
(d) A fast food, retail, or utility safety employer may create or maintain any of the records required by this Section in a scheduling application or other electronic recordkeeping system. Such employer must ensure:
1. That such records are maintained and preserved for at least three years;
2. That such records can be readily exported in non-proprietary, machine-readable data formats, as may be needed to meet the obligation to produce such records to the department;
3. That the scheduling application or other electronic recordkeeping system is not subject, in whole or in part, to any agreement or restriction that would, directly or indirectly, compromise or limit the employer's ability to comply with any obligation to produce such records to the department; and
4. That the scheduling application or other electronic recordkeeping system is not configured to overwrite or destroy any of the information required by this section, or that it is supplemented by an alternative system for retaining true and accurate copies of information and records that might otherwise be destroyed or overwritten.
(e) To electronically provide a regular schedule or an updated copy of a regular schedule under § 20-1221(a), or to electronically transmit a work schedule or a revised work schedule under §§ 20-1221(c)(1) or 20-1221(c)(2) of the Fair Workweek Law, the electronic communication delivered by the employer must include the days, times, and locations of all shifts in such schedule.
(f) To provide a notice of available shifts electronically under § 20-1241(b) of the Fair Workweek Law, the electronic communication delivered by the employer to the employee must include: (i) the contents of the offer, or (ii) an alert that an offer is available and an attachment or a link to where the employee can readily view the contents of the offer.
(Added City Record 11/28/2017, eff. 11/28/2017; amended City Record 5/24/2022, eff. 6/23/2022)