New York City Proposes to Expand its Earned Safe and Sick Time Law
The New York City Council is in the process of passing a bill that would expand NYC’s Earned Safe and Sick Time law (ESSTA) by adding up to 80 hours of accrued personal time off. The legislation also expands protections to workers under the city’s entire paid leave law, including sick and safe time.
The legislation would update and rename the city’s paid leave law to become the “Earned Safe, Sick, and Personal Time Law” that provides paid leave to employees under prescribed circumstances.
Under the new legislation, all employers with 5 or more employees and all employers of one or more domestic workers (i.e., employees who work more than 80 hours in a calendar year in NYC, as well as non-agency employed domestic workers) would be required to provide one hour of personal time for every 30 hours worked, up to a maximum of 80 hours. Personal time could be used for absence from work “for any reason” and an employee would not be required to provide any documentation for authorization by the employer. Where the use of personal time is foreseeable, an employer may require reasonable advance notice, not to exceed 14 days prior.
The legislation would allow workers to roll-over up to 80 hours of personal time to the following calendar year, although employers are not required to allow for the use of more than 80 hours in a calendar year.
The same exemptions would apply to this legislation as already exist under the Earned Safe and Sick Time Law, including independent contractors. However, the legislation would change one exempt category from “hourly professional employees” to “licensed providers of education-related services.” Employers who provide employees with equivalent paid time off, paid vacation, paid personal days, or paid rest days are not required to provide additional personal time.
Expansion of Employee Protection under ESSTA
Presently, while new employees begin accruing leave under ESSTA at the start of employment, employers may restrict the use of accrued time for up to 120 days. Under the bill, employers would only be able to restrict the use of accrued time for up to 90 days after the start of employment.
The bill would expand protections against retaliation for employees exercising their rights under ESSTA. Among other things, protections would apply in cases of good faith, but ultimately mistaken, allegations of violations of the law. Further, to prove retaliation, employees would need only have to show that protected activity under ESSTA was a “motivating factor” for an adverse employment action, as opposed to needing to show that the protected activity was the “but for” cause of such an action.
In addition to remedies already available under ESSTA, the bill would provide for a penalty of up to $500 “for each employee covered under an employer’s official or unofficial policy or practice of not providing or refusing to allow the use of earned time” in violation of the law. The bill would further specify that all civil penalties under the law would be imposed on a per employee basis.
The bill would empower the NYC corporation counsel to investigate potential violations of ESSTA and bring civil actions to enforce the law, whether on the basis of individual violations or a “pattern or practice” of violations of the law.
If ultimately enacted, the amendments would take effect 120 days after becoming law. We will continue to monitor this bill and report on any further developments.