NYC Workers Can Sue for Safe and Sick Leave Violations

New York City, NYEarlier this year, New York City enacted a law that amends the city's Earned Safe and Sick Time Act (ESSTA) from 2014. Under Int. 0563-2022, “any person" has a private right of action to file New York lawsuits in court within two years of learning of an alleged violation. The law took effect in March, 2024.

Previously, employees were required to first make a complaint to NYC’s Department of Consumer and Worker Protection (“DCWP”).  The agency would then investigate and if it found a violation, the complaint would be sent to an administrative tribunal – sounds like a lot of paperwork and time. Now under the new law Int. 0563-2022, (which amends Section 20-924 of the New York City Administrative Code) “any person” can bypass filing a complaint with or notifying the DCWP and file a civil complaint in court. But workers can still complain to the Department of Consumer and Worker Protection and bring a lawsuit, and the agency would then stay the investigation until the court case resolves, and the agency also can open its own investigation, reports Law360.

According to JDSupra, employees who prove a violation of ESSTA may recover:

• Three times the wages that should have been paid pursuant to ESSTA or $250.00, whichever is greater, for each instance of safe and sick leave taken by an employee but unlawfully not compensated by an employer;
• $500.00 for each instance of safe and sick leave requested by an employee that was: (i) unlawfully denied by the employer and not taken by the employee; (ii) unlawfully conditioned upon searching for or finding a replacement worker; or (iii) unlawfully subjected to a mandate by an employer to work additional hours to make up for the original hours during which the employee was absent, without the mutual consent of the employer and employee;
• Full compensation, including wages and benefits lost, $500.00 and equitable relief as appropriate for each violation of retaliation and interference pursuant to Section 20-918 (excluding discharge from employment);
• Full compensation, including wages and benefits lost, $2,500.00 and equitable relief, including reinstatement, as appropriate for each instance of unlawful discharge from employment; and
• $500.00 for each employee covered by an employer’s official or unofficial policy or practice of not providing or refusing to allow the use of accrued safe and sick time in violation of ESSTA.

In addition, employees alleging a violation of ESSTA may seek injunctive and declaratory relief, attorneys’ fees and costs and other relief as the court deems appropriate.

ESSTA Background

The Earned Safe and Sick Time Act, which came about in 2014, allows workers to take leave for several reasons, including their own care and treatment or that of a family member, or to seek services or take safety measures related to domestic violence or unwanted sexual contact, stalking, or human trafficking or to help a family member do so. It requires employers with five or more employees to provide paid sick leave to Manhattan-based workers.

But some employers have pushed back against the law. For instance, in October 2021 Delta Airlines won a 4-year legal battle with its flight attendants over the paid sick leave law. A New York federal judge found the mandate is preempted by federal law because it could cut into the airline's ability to compete with rivals -- that it runs counter to the Airline Deregulation Act, the broad federal law that bars any state regulations "related to a price, route or service of an air carrier." American Airlines also sued New York City, but the suit ended in a settlement.

Attorneys advise employers in New York City to revisit their safe and sick leave policies to ensure compliance. As well, supervisors, human resources personnel and leave administrators should also be aware of the ESSTA’s expanded scope.