In 2017, New York City implemented the Fair Workweek Law establishing rigorous standards for schedule predictability and employee rest.
My focus on the Fair Workweek Law grew out of an interest in the intersection of operational data and regulatory complexity. Last year while working in a consulting role with a client in NYC, I saw firsthand how easily the law’s intricacies can trigger a series of liabilities.
There are two critical components of this legislation. First, the “Right to Rest” provision broadly provides a right to rest between shifts. This provision specifically targets fast-food chains with 30 or more locations nationally. Second, it requires employers to provide advance notice of schedule modifications for schedule predictability.
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The Regulatory Framework
One of the primary objectives of these rules is to eliminate the practice of “clopening”—the scheduling of a closing shift followed by an opening shift with insufficient rest. To that end, my understanding is that the law puts in place an important threshold governing minimum rest:
- The 11-Hour Threshold: The law mandates a minimum of 11 hours of rest between shifts unless the business provides significant additional compensation to workers.
An additional objective of these rules is to make workers’ schedules more predictable. To that end, the law puts in place various penalties/burdens for schedule changes:
- Predictive Schedule Penalties: The law mandates escalating penalties depending on how far in advance the worker is given notice and whether the change increases or decreases hours.
The interaction of these different penalties and burdens can create complex scheduling compliance challenges for businesses:
- Dual Compliance Burdens: Employers must balance these rest requirements against separate schedule predictability mandates. Failure to navigate these requirements results in owed premiums and potential civil liabilities.
Potential Liability Assessment and Expert Analysis
The financial consequences of a single scheduling error can be significant. Given the complexity of the requirements and escalating nature of penalties, financial consequences facing businesses can rapidly increase. Retaining an analytical expert is often essential to accurately quantify damages and/or mitigate exposure through data-driven analyses.
Brief History of Clopening and Schedule Predictability Laws in the United States
New York City is not the only jurisdiction and class of workers covered by this type of law.
- San Francisco instated the “Formula Retail Employee Rights Ordinances” in 2014.[1]
- Seattle[2], Chicago[3], Philadelphia[4] passed mandates between 2016 and 2019.
- Oregon passed the first statewide predictive scheduling mandate in 2017.[5]
- Los Angeles enacted its own Fair Workweek Ordinance, which took effect in 2023.[6]
The laws coverage of workers varies from jurisdiction to jurisdiction.
- New York City focuses primarily on fast food and retail[7]
- Chicago and Philadelphia have expanded coverage to include hospitality, food service, and even certain healthcare sectors.[8]
- Many of these ordinances focus on “Formula Retail” establishments, which are standardized businesses with a minimum number of locations.[9]
Given that these laws govern workweeks, rest, and schedule predictability, they have been called a variety of names:
- “Predictive Scheduling” laws
- “Secure Scheduling” ordinances
- “Formula Retail” protections
The “Clopening” Requirements and Additional Pay Owed (“Premium”)
The employer may ask an employee to work a clopening shift. If the shift is worked, this can result in two distinct outcomes:
| Employee Provides Written Consent | Employee Does Not Provide Written Consent |
| Compliant if $100 premium is paid | Violation; employer still owes $100 premium |
Key Requirements & Penalties
To maintain compliance with clopening regulations, the following conditions must be strictly observed:
- Dual Conditions for Compliance: A clopening shift is only compliant if the employer (i) obtains written consent from the employee and (ii) pays a $100 premium in addition to regular wages.
- Definition of a Violation: A violation occurs if either (i) a clopening shift is scheduled without written consent, or (ii) the employer fails to pay the $100 premium.
- Cost of Non-Compliance: The cost per violation is the unpaid premium plus the statutory civil penalty.
Total Cost = Unpaid Premium + Civil Penalty
Minimum Total Cost = $100 + $500 (minimum penalty)
Only the civil penalty is owed in the event the premium was already paid.
The Escalating Risk of Systemic Violations
- Aggravated Penalties for “Pattern and Practice”: While a single infraction may be approximately $600, repeated violations carry escalating penalty amounts. For example, an employer with a history of non-compliance within two years of the first typically increase penalties to $750 or $1,000.[10] The City’s Corporation Counsel can pursue “pattern and practice” litigation with court-ordered penalties reaching $15,000 per violation.[11]
- Class Action Exposure: Systemic failure to secure written consent or pay premiums exposes employers to class or collective actions. Claims can reach tens of millions of dollars across a large workforce and multi-year look-back periods.
- Case Study in Systemic Costs: Starbucks recently agreed to pay $38.9 million to a class of approximately 23,000 workers to settle allegations of widespread violations of New York City’s Fair Workweek Law. The settlement highlights the massive liability that accrues when scheduling irregularities are treated as systemic rather than isolated incidents.[12]
A Simple Example of Clopening Costs
Henry, an employee of a big chain franchise, has a normal schedule of:
- Monday: 12:00 PM to 8:00 PM and
- Tuesday: 6:00 AM to 12:00 PM.
He gives written consent to open on Tuesday with fewer than 11 hours of rest. He is entitled to premium pay of $100.
Schedule Predictability
The Fair Workweek Law has provisions to ensure an employee has a predictable weekly schedule. Predictable in this context means having roughly the same shifts week-to-week. In other words, last week’s schedule is predictive of next week’s schedule. There are specific requirements if an employer wants to change an existing schedule.
If an employer notifies the employee of a change to their schedule with less than 14 days notification, the employee is entitled to additional pay (“predictable schedule premium”). The amount of the premium depends on two factors:
- 1) Length of advanced notice (24 hours, 7 days, 14 days); and
- 2) Impact on working hours (reduced, unchanged, increased).
Example of Clopening Costs Interacting with Predictability Costs
This hypothetical illustrates the financial trade-offs between “clopening” violations and predictability premiums when a schedule is modified mid-week.
Herny’s Normal Schedule: Monday (12:00 PM–8:00 PM) & Tuesday (7:00 AM–12:00 PM).
The Deviation: On Monday, Henry agrees to work 30 minutes late (until 8:30 PM). This change (i) increases his working hours, but with (ii) less than a 24-hour advance notice. This triggers an immediate $15 predictable schedule premium for the Monday shift.
Tuesday Liability Scenarios
The employer must then choose one of three paths for Tuesday, each carrying distinct financial consequences:
Key Takeaways
This scenario emphasizes that even a voluntary 30-minute extension can trigger cascading costs. Effective mitigation requires:
- Strict adherence to the Fair Workweek Law during initial scheduling.
- Disciplined management to avoid ad-hoc deviations.
Summary
The New York City Fair Workweek Law clearly dictates to businesses that the “convenience” of deviating from strict scheduling guidelines is not worth the potential financial costs. The initial $600 cost for a single uncompensated clopening serves as a sharp reminder of the penalties for failing to prioritize employee rest. Additionally, the penalties associated with schedule changes encourage predictable scheduling.
Businesses that are governed by the New York City Fair Workweek Law can benefit from the services of a wage and hour expert. Such an expert can help employers minimize these penalties and costs by running periodic audits using the employer’s punch and scheduling data. The expert can highlight areas of potential risk and pinpoint specific managers and/or locations that may need extra attention. Given the possible high cost of escalating offenses, some employers may even find that hiring an expert to do a comprehensive audit costs is a proactive business decision.
The proliferation of these mandates suggests that predictive scheduling is no longer an isolated experiment but a sustained regulatory trend. As comparable predictive scheduling laws are adopted by other regions and/or industries, it will be increasingly beneficial for businesses to find ways to take a proactive approach.
