On Jan. 20, 2024, The New York City Council amended the City’s Earned Safe and Sick Time Act (ESSTA), to create a private right of action for employees claiming violations of ESSTA. The new law amends Section 20-924 of the New York City Administrative Code and allows employees to commence a civil action alleging a violation of ESSTA within two years of the date the employee knew or should have known of the alleged violation. The new law becomes effective March 20, 2024.
Currently, the sole redress for employees alleging violations of ESSTA is to submit an administrative complaint to the New York City Department of Consumer and Worker Protection (DCWP). The new amendment will allow employees to file both an administrative complaint with the DCWP and a civil action in a court of competent jurisdiction for the same alleged ESSTA violation. Employees are not required to file an administrative complaint with the DCWP prior to commencing an action in court for alleged ESSTA violations.
If an employee files both a civil suit and a DCWP complaint against the employer for the same alleged ESSTA violation, the DCWP will stay its investigation until it receives notice that the civil suit has been withdrawn or dismissed without prejudice. Once DCWP receives notice of a final judgment or settlement of the civil action, DCWP may dismiss the complaint unless it determines that the complaint alleges a violation that was not resolved by such judgment or settlement. The employee must notify DCWP within 30 days after the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.
Employees who prove a violation of ESSTA may recover:
Three times the wages that should have been paid pursuant to ESSTA or $250, whichever is greater, for every instance where an employee is not compensated properly by the employer for safe and sick time taken.
$500 for every instance where an employee requested safe and sick time that was (a) wrongfully denied by the employer and not taken by the employee; (b) wrongfully conditioned upon a requirement that the employee search or find a replacement worker prior to approval; or (c) wrongfully subjected to a requirement that the employee work additional hours to make up for the original hours for which the employee was scheduled, without the mutual consent of the employer and employee.
Full compensation for wages and benefits lost, plus $500 and equitable relief as deemed appropriate, for every instance of retaliation and interference.
$2,500, full compensation, including wages and benefits lost; and equitable relief, including reinstatement, as deemed appropriate for each instance of unlawful discharge from employment.
$500 for each employee covered by a policy that does not provide or allow for the use of safe and sick time pursuant to ESSTA.
In addition, the amendment permits an employee to seek injunctive relief and declaratory relief, attorney’s fees and costs, and any other relief that the court deems appropriate.
The amendment also expands ESSTA’s civil penalty provisions for entities found to be in violation of provisions regarding the accrual and use of sick or safe time or retaliation, on a per employee basis, of up to $500 to be paid to the city for the first violation. Subsequent violations that occur within two (2) years of any previous violation, entities will be liable of up to $750, not to exceed $1,000 for each succeeding violation.
If you have any questions about the information presented in this news alert, please contact Lance Willoughby-Hudson, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.
On Sept. 15, 2023, the New York City Department of Consumer and Worker Protection adopted several amendments to the City’s Earned Safe and Sick Time Act (ESSTA). Notably, some of the key amendments include changes to 1) what constitutes an “employee” under the ESSTA; 2) how to calculate an employer’s size to meet safe/sick time requirements; 3) when it is permissible to request documentation from employees for safe and sick leave; 4) information on requirements for employees to notify their employer for use of leave; 5) calculating an employee’s rate of pay; and 6) updates that should be made to an employer’s ESSTA workplace policy. These amendments take effect on Oct. 15, 2023. A brief summary of some of the notable changes are detailed below.
New York City’s Earned Safe and Sick Time Act (ESSTA or Act) provides covered employees with the right to use safe and sick leave as it accrues for a delineated list of circumstances. On Aug. 11, 2022, the New York City Council introduced a proposal to amend the ESSTA’s definition of “employee.” Under this proposal, certain independent contractors would qualify as employees and receive benefit coverage under the Act. The proposal would require hiring entities to engage in detailed analyses of individuals providing services to determine wither they are independent contractors or employees.
On November 6, 2017, New York City Mayor Bill de Blasio signed into law an amendment to the City’s administrative code which would afford leave time to victims of family offense matters, sexual offenses, stalking, and human trafficking, and their family members. The amendment will take effect 180 days after the Mayor’s signing (May 5, 2018), and New York City will join a host of other states and municipalities that already provide similar leave time for domestic violence victims and their families.
Chapter 8 of Title 20 to the NYC Administrative Code, previously titled the “Earned Sick Time Act,” will now be referred to as the “Earned Safe and Sick Time Act.” Under the amendment, employers with five or more employees are required to provide a minimum of one hour of safe/sick time for every thirty (30) hours worked by an employee. Employers are not required to provide more than forty (40) hours of safe/sick time in a calendar year.
A covered employee who is a victim or who has a family member who has been the victim of a family offense matter, sexual offense, stalking, or human trafficking is entitled to use safe time for any of the following reasons:
To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
To meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing, or consumer credit;
To file a complaint or domestic incident report with law enforcement;
To meet with a district attorney’s office;
To enroll children in a new school; or
To take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
Employers may request documentation for an absence of more than three (3) consecutive work days for safe time. Documentation signed by an employee or volunteer of a victim services agency, an attorney, a member of the clergy, or a medical or other professional service provider constitutes reasonable documentation under the Act. The production of a police or court record, or even a notarized letter from the employee explaining his/her need to take safe leave may also be considered reasonable documentation. Employers are prohibited from requiring that the documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.
Employers are required to provide notice to employees of their right to safe leave within thirty (30) days of the amendment’s effective date.
In January 2017, the New York State Senate introduced a bill which would amend the State Labor Law to similarly provide unpaid leaves of absence for victims of domestic or sexual violence. To date, this bill — Senate Bill S2856 — remains before the Senate Labor Committee and has not yet been calendared for presentation before the State Senate. Versions of this bill have been introduced by the State Senate in prior years without much success. However, in light of New York City’s recent addition of safe time, the presentation and passage of this bill may be more likely than in previous years.
