Department of Consumer Affairs (DCA) Commissioner Lorelei Salas today announced a settlement with an owner-operator of 30 Kentucky Fried Chicken (KFC) locations across Brooklyn, Queens, and Bronx to resolve violations of the City’s Fair Workweek Law.
The settlement, which is the result of an investigation by DCA’s Office of Labor & Policy Standards (OLPS), requires the KFC operator to repeal an illegal waiver that employees were required to sign, pay $80,000 in restitution to more than 600 employees, and submit to intensive and comprehensive auditing by an independent monitor for 18-months to ensure compliance with the City’s workplace laws. This settlement is one of more than 40 investigations that have been closed in the first year of the Law. By settling the violations it found, DCA has been able to secure a total of more than $217,000 in restitution and civil penalties for almost 1,200 workers and ensure that their employers comply with the law.
“DCA has zero tolerance for anyone who breaks the law and violates the rights of employees who work hard to earn a living—especially those employers with a willful intent to deny workers their rights like this KFC operator,” said DCA Commissioner Lorelei Salas. “The successes in DCA’s first year enforcing the Fair Workweek Law demonstrate that these new labor standards make a critical difference in workers’ lives, providing them with predictability in their budgets and their lives—and making good on Mayor de Blasio’s commitment that such stability must be a right and not a privilege. This settlement is proof that no one is above the law, and that workers in New York City have allies in their corner if they feel their rights as employees are being violated. With the holiday shopping season upon us, I want to remind both retail workers and fast food workers—and their employers—about the legal requirement that workers have predictable schedules.”
Under the Fair Workweek Law, fast food employers in New York City must give workers good faith estimates of when and how much they will work, predictable work schedules, and the opportunity to work newly available shifts before hiring new workers. Fast food employers also cannot schedule workers to work two shifts over two days when there are less than 11 hours between shifts (a “clopening”) unless workers consent in writing and are paid a $100 premium to work the shift. Under the Law, retail employers must also give workers advanced notice of work schedules and may not schedule workers for on-call shifts or change workers’ schedules with inadequate notice.
DCA’s investigation into KFC found that, around the time when the Fair Workweek Law went into effect, the employer required workers to sign an illegal waiver to their right to premium pay. Under the Law, fast food employers must pay workers premium pay when schedules are changed with less than two weeks’ notice; the amount of premium pay varies based on the amount of notice provided and the impact on the number of hours to be worked.
In addition to requiring employees to waive their right to premium pay and changing workers’ schedules without providing premium pay, DCA found KFC also violated the Fair Workweek Law by failing to provide the required Predictable Schedule: Fast Food Notice, which must be posted in any language that is the primary language of at least five percent of the workers at the workplace if available on DCA’s website here, and for failing to maintain records of the distribution of good faith estimates of schedules and employee consent forms for schedule changes. DCA also found violations of the NYC Paid Safe and Sick Leave Law, including having a policy that violates how leave is accrued and unlawfully limits the definition of family member, and for failing to distribute the required Notice of Employee Rights.
The severity of the violations in the KFC case led DCA to require the employer to agree to pay for and submit to independent monitoring of their labor practices for 18 months, with unannounced on-site inspections and payroll audits. This outcome, along with DCA’s other Fair Workweek enforcement, demonstrates the City’s determination that employers ensure their employees are receiving the protections required by the Law.
“On-call scheduling is devastating for retail workers. You need to put your life on hold and be available for work – regardless of whether you will be called-in or paid. If you are a part-time worker, the uncertainty of your schedule means you can’t arrange for a needed second job. If you are a parent, you don’t know if you are going to need child care. If you want to continue your schooling, you can’t sign up for classes without knowing your availability. That is why the law was so important,” said Stuart Appelbaum, President of the Retail, Wholesale and Department Store Union (RWDSU).
“One year ago, New York City enacted the country’s strongest Fair Workweek protections to provide reliable work hours and access to full time jobs,” said Rachel Deutsch, Supervising Attorney for Worker Justice at The Center for Popular Democracy. “But these laws would be meaningless without robust enforcement. We applaud DCA for requiring employers who have flouted the law to participate in independent monitoring to ensure prospective compliance. Innovative enforcement practices that empower workers to participate in holding their employers accountable and educating their coworkers about their workplace rights, along with stiff penalties for lawbreaking companies, will be critical to building a culture of compliance with Fair Workweek Law.”
“A Better Balance was proud to work on the Fair Workweek Law that has become a model for the rest of the country in guaranteeing workers predictable schedules and the opportunity to take on newly available work shifts,” said Sherry Leiwant, Co-Founder & Co-President, A Better Balance. “These rights enable workers to care for their families. All of the workers and organizations who worked tirelessly to get this legislation passed, the Department of Consumer Affairs—which is enforcing the law, and Fast Food Justice—which is working to ensure that workers know their rights and can take advantage of them…all deserve enormous congratulations for this groundbreaking law.”
“Today it is clear just how necessary the Fair Work Week Legislation is for workers in our great city,” said Hector Figueroa, president of 32BJ SEIU. “These new labor standards are making an impactful difference in the lives of thousands of hardworking men and women, their families and the communities that depend on them. There is still work to be done, but it is a major achievement that thousands of New Yorkers now have stable schedules, advanced notice of their hours and greater access to full time work.”
“Predictable schedules are essential to workers and their families and also offer benefits to employers, as just-in-time scheduling practices ultimately undermine profitability,” said Susan Lambert, Associate Professor and Employment Expert at the University of Chicago. “Research shows that it is possible to balance the needs of employers for labor flexibility with the needs of workers for schedule predictability.”
“My settlement with Smashburger of over $9,000 is not just a victory for me but for all fast food workers across NYC,” said Shani Rahman, Smashburger worker and member of Fast Food Justice. “Fast Food workers came together to get the Fair Work Week Laws passed and we are continuing to come together to enforce the law. Having a predicable schedule makes it easier to take care of my three-year-old daughter.”
“The industry never used to tell us our schedules in advance. And they’d change them at any moment,” said Edwin Cabrera, Domino’s Worker and member of Fast Food Justice. “Now I can count on a more predictable schedule and a more predictable paycheck. And it’s all because thousands of us are coming together, knowing our rights, and making sure those rights are respected.”
“On-call scheduling takes away workers humanity,” said Rachel Laforest, Executive Director of the Retail Action Project. “So many RAP members come through our doors with child and elder care needs or are looking to take on educational classes. The on-call ban in NYC has given workers an opportunity to take back their schedules and their lives. There is still so much work to be be done to educate retail workers on the ban and we’re proud to work with DCA to flag enforcement issues and ensure workers are protected.”
This announcement comes just before the one-year anniversary of the City’s Fair Workweek Law going into effect. During the first year of the Law, DCA has and will continue to educate employers and workers about the law—planning, conducting or attending 230 events to help workers and employers understand their rights and responsibilities under the law. DCA has received 120 complaints from workers, which resulted in more than 80 investigations. With enforcement remedies tailored to the varying severity of the violations and in consideration of the need for an educational period during the first year of implementation of a new law, DCA has secured settlement agreements in a wide range of cases, securing a total of $175,419 in restitution for almost 1,200 workers and $42,357 in fines. DCA also obtained forward-looking, non-monetary remedies in the cases it closed, including reinstatement and backpay for workers who were unlawfully terminated. As the first year of the Law comes to a close, DCA will expand enforcement efforts and filed nine cases at the Office of Administrative Trials and Hearings (OATH). These cases allege violations such as unlawful termination, unlawful shift cancellation, unlawful retaliation, failure to provide good faith estimates, failure to provide premium payments, and failure to maintain compliant written sick leave policies.
For more information about OLPS and the City’s workplace laws, please visit here. The required notices for the Fair Workweek Law (Predictable Schedule: Fast Food, Predictable Schedule: Retail), overviews of the laws (Fair Workweek: Fast Food, Fair Workweek: Retail), FAQs, and complaint forms (Fair Workweek: Fast Food, Fair Workweek: Retail) are available here and in multiple languages. Employers and employees can also visit here or call 311for more information about Paid Safe and Sick Leave, including the Notice of Employee Rights, one-page overviews for employers and employees, and the complaint form. DCA also provides tools such as timekeeping tools, model forms, notices, and record keeping documents to help employers properly implement the Fair Workweek Law and the Paid Safe and Sick Leave Law.
NYC’s labor workplace laws apply to all covered employees regardless of immigration status. Employers cannot punish, penalize, retaliate, or take any action against employees that might stop or deter them from exercising their rights, and workers can file a complaint online here or by calling 311. Complaints can be filed anonymously.
The NYC Department of Consumer Affairs (DCA) protects and enhances the daily economic lives of New Yorkers to create thriving communities. DCA licenses more than 81,000 businesses in more than 50 industries and enforces key consumer protection, licensing, and workplace laws that apply to countless more. By supporting businesses through equitable enforcement and access to resources and, by helping to resolve complaints, DCA protects the marketplace from predatory practices and strives to create a culture of compliance. Through its community outreach and the work of its offices of Financial Empowerment and Labor Policy & Standards, DCA empowers consumers and working families by providing the tools and resources they need to be educated consumers and to achieve financial health and work-life balance. DCA also conducts research and advocates for public policy that furthers its work to support New York City’s communities. For more information about DCA and its work, call 311 or visit DCA here or on its social media sites, Twitter, Facebook, Instagram and YouTube.