Tag: paid sick leave

December 12, 2022

New York Expressly Forbids Retaliation for Lawful Absences from Work

On November 21, 2022, Governor Hochul signed an amendment to the New York Labor Law to enhance employee protections against retaliation. The amendment adds an express prohibition of retaliation for any lawful absences from work. The amendment takes effect on February 19, 2023.

New York Labor Law Section 215

Section 215 of the New York Labor Law generally prohibits private (non-governmental) employers from discriminating against employees for engaging in a wide array of protected activities. Before this amendment, these protected activities included:

Making a complaint that the employee’s employer has engaged in conduct that the employee reasonably and in good faith believes violates any provision of the Labor Law or order of the Commissioner of Labor;
Being perceived by the employer as having made such a complaint;
Instituting a proceeding under or related to the Labor Law;
Providing information to the Department of Labor or the Attorney General;
Testifying in an investigation or proceeding under the Labor Law;
Exercising other rights protected by the Labor Law;
Being the subject of an adverse determination from the Commissioner of Labor against one’s employer.

Employees may file retaliation claims in court or with the Commissioner of Labor. Penalties can include repayment of lost wages; liquidated damages; and civil penalties of $1,000 to $10,000 for the first offense and up to $20,000 for the second offense. Violation of Section 215 also constitutes a class B misdemeanor.

Amendment Addressing Lawful Absences

The amendment expands the definition of protected activity to prohibit retaliation because an “employee has used any legally protected absence pursuant to federal local, or state law.”

Unfortunately, this new language is vague. If read broadly, as the Legislature likely intended, it will encompass numerous paid and unpaid leave laws, including:

New York Paid Sick Leave
New York Paid Family Leave
New York Paid COVID-19 Leave
New York Paid Vaccine Leave
Family and Medical Leave
Other specific New York Leaves, such as:
- Blood Donation Leave
- Bone Marrow Donation Leave
- Military Spouse Leave
- Witness and Victims of Crime Leave
- Volunteer Emergency Response Leave
- Jury Leave
- Voting Leave

Employees are also often allowed time off while receiving workers’ compensation or disability benefits or as an accommodation under the Americans with Disabilities Act and New York Human Rights Law. None of these legal authorities specifically grants employees time off from work. However, it is plausible that Labor Law Section 215 will be interpreted to include leaves under these circumstances.

No-Fault Attendance Policies

Many employers apply attendance policies that allocate points on an employee’s record for each absence. Commonly, these policies apply regardless of the purpose or reason for the absence. Such policies are known as “no-fault” attendance policies. Whether the reason for the absence matters or not, point-based policies result in pre-specified employment consequences when employees reach certain levels.

The amendment to Labor Law Section 215 adds a specific prohibition against “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”

Practical Impact

It is arguable whether this amendment really expands worker protections. Generally speaking, various laws would likely already prohibit adverse employment action against employees for taking lawful absences from work. Section 215 itself probably already would have applied in many such situations.

But the Legislature at least intends to shed light on the subject and potentially increase available penalties. Accordingly, New York employers should review existing policies and practices regarding their handling of lawful absences by employees. Moreover, managers must understand the types of absences that may be protected under applicable laws.

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January 31, 2022

New York Employment Law Proposals 2022

We published a similar article in February 2020. The next month, COVID-19 introduced a new world, including for workplace legal issues. Recognizing now more than ever that the unpredictable is the new normal, let’s look back at New York employment law proposals from early 2020 and look ahead at what new laws may be coming in 2022.

Note that none of the bills addressed here have become law at the time of writing. We will continue to track these and other New York employment law proposals for updates.

Update from Pre-COVID Employment Law Proposals

Paid Sick Leave

In February 2020, we highlighted legislation to impose paid sick leave statewide. With COVID-19 as an impetus, paid sick leave passed the legislature in 2020 and took effect on January 1, 2021.

Whistleblower Protections

One of the bills pending in early 2020 sought to increase whistleblower protections for New York workers dramatically. This legislation may have initially taken a backseat to the pandemic, but was ultimately signed into law by Governor Hochul in October 2021.

Proposed Bills – Returning Nominees

We identified proposals similar to the ones below back in 2020. They haven’t become law yet, but remain candidates for having a material impact on New York employment law.

A3632 / S575 – Abusive Work Environment

This bill, repeatedly proposed over the past decade, is an attempt at anti-bullying legislation. It provides that “no employee shall be subjected to an abusive work environment.” Employers would be liable when they or their employees create such conditions in the workplace.

With a broad definition of “abusive work environment,” this bill aims to create protections on top of workplace harassment laws. Essentially, this law would eliminate the requirement that the negative treatment be based on a legally protected personal characteristic. The following could qualify as abusive conduct regardless of the underlying basis:

repeated verbal abuse, such as the use of derogatory remarks, insults, and epithets;
verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature; or
sabotage or undermining of an employee’s work performance.

While none of these behaviors is pleasant or generally desirable, imposing employer liability on these bases would open floodgates of employment litigation. But, it’s at least plausible that New York could pave the way for such legislation.

A02448 / S8108 – “Schedules That Work Act”

New York City already has a local “Fair Workweek Act” that regulates the scheduling of fast food and retail employees. New York State started down the path of imposing similarly-intended regulations a few years ago. But that effort stalled out of fear that it would have exceeded the Department of Labor’s regulatory authority. However, the State indicated that it might continue the effort through legislation.

This legislation would impose new restrictions on covered employers’ ability to schedule employees. It includes specific parameters regarding call-in pay, split shifts, and advance notice of work schedules.

Some aspects of the proposed “Schedules That Work Act” would only apply to the retail, food service, and cleaning industries.

The bill more generally permits employees in any industry working for an employer with at least 50 employees to request changes to their work schedules and related employment details. Upon application, employers would then be required to “engage in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee’s needs.”

If enacted as proposed, this bill would constitute a monumental shift in the scheduling dynamic for many New York workplaces.

A8008 / S6502 – Personnel Files

Currently, New York law does not require employers to provide employees access to review their personnel files. This bill would change that.

As proposed, this legislation would require employers to give current and former employees, upon request, a free copy of their personnel file up to 2 times each year.

Several other states already have similar statutory provisions.

Proposed Bills – New Contenders

While some of the bills below may have been introduced in previous legislative sessions, they didn’t jump to the top of our list of likely new laws back in early 2020. But now, they seem viable or otherwise remarkable enough to highlight.

S734 – Non-Competes

Governor Hochul has announced non-compete reform as one of her legislative priorities. Frankly, this bill probably doesn’t go as far as the Governor intends. But it’s still worthy of note as a starting point for potential limitations on the use of non-competes in New York.

This proposal would ostensibly codify non-compete standards currently used by New York courts. As such, it would only permit a non-compete agreement that:

is no greater than required for the protection of the legitimate interest of the employer;
does not impose an undue hardship on the employee;
is not injurious to the public; and
is reasonable in time period and geographic scope.

The law also attempts to render a non-compete unenforceable where an employee loses the job due to a declared state of emergency (e.g., the COVID-19 pandemic).

A6639 / S7434 – Salary Information

This bill would mandate significant changes to the way many employers currently determine salaries and wages. New York law already prohibits employers from asking about their salary history. This legislation would go further and prevent them from even asking employees about their salary expectations.

In addition, employers would have to include the applicable wage scale or salary range in each job posting.

A2142 – Use of Paid Sick Leave

This bill proposes that employees’ paid sick leave “shall not result in a reduction of paid time off for purposes other than sick leave.”

It seems this would prevent employers from combining paid sick leave into a general paid leave bucket, such as “Paid Time Off” or “PTO.”

If this bill were to pass as drafted, it would raise many questions not easily answered by the legislative text. If the concept were to gain traction, the bill would probably be amended or replaced by an alternative proposal. But, any new law with this intent would undoubtedly affect a large number of workplaces, likely requiring most employers to revise their paid leave policies.

A6090 / S6032 – Remote Electronic Monitoring

Obviously influenced by the COVID pandemic, this bill would restrict employers from engaging in electronic monitoring of their employees working at home. Employers could not require employees to install software on personal devices, including smartphones, in an attempt to help confirm whether the employee is actually working.

Under this bill, employers could not even monitor employees on company-provided computers and devices in real-time. However, they could review employee website browser histories.

(Click here for more on a new law already in place that affects electronic monitoring of employees generally.)

A2534 / S6032 – Bereavement Leave

The New York Legislature has been trying to enact some form of bereavement leave over the past couple of sessions. In fact, they nearly succeeded in 2018, but then-Governor Cuomo vetoed the bill.

As with the vetoed legislation, this pending proposal would revise the state’s Paid Family Leave law. It would permit eligible employees to use PFL for bereavement leave. That could mean up to 12 weeks of partially paid leave to grieve the death of a family member.

With a new governor, will this measure finally become law in 2022?

A5047 / S385 – Parenting Leave

This proposal would require employers with 50 or more employees to provide employees up to 16 hours off during any school year to attend school conferences or classroom activities related to the employee’s child that cannot be scheduled during non-work hours. Under the bill, employers are not required to pay employees for this time.

A761 / S640 – Essential Workers Bill of Rights

The COVID pandemic introduced us to “essential workers.” Under this legislation, that group includes, but is not limited to employees of any:

essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.

During a State disaster emergency, employers of essential workers would have to implement the “bill of rights” outlined in the law. Among the most notable requirements are mandatory hazard pay and “payment of the costs of any child care or health care needed by such essential workers for the duration of the state disaster emergency.”

Especially given the payment provisions, it’s unlikely the bill would take effect in the currently proposed form. But, the general concepts in play presumably have widespread support (as well as intense opposition).

A8823 – Minimum Wage

This bill proposes to increase the minimum wage for employers with annual income of $500 million or more to $20.00 per hour. (As a caveat, the bill further clarifies that any franchise of a company whose income is $500 million or more is also subject to this enhanced minimum wage.)

Currently, New York’s minimum wage varies only by geographic location and (in New York City) workforce size.

A6829 / S5640 – Public Employers

Various aspects of the New York Labor Law currently exclude public employers and their employees from coverage. Several of the bills discussed above would expressly apply to both public and private employers. This bill would go back and subject public workplaces to the existing requirements of the wage payment provisions of the Labor Law. This development would introduce many new obligations and parameters on public entities, including municipalities and school districts, throughout the state.

Employer Concerns with New York Employment Law Proposals

Employers have valid reasons to resist many of these New York employment law proposals. It is unlikely that all of these bills will become law in their current form. However, any of these topics could produce new legal obligations as soon as this year.

You should consider whether any of these measures would unduly burden your business. If so, it’s not too soon to start tracking these New York employment law proposals and seeking to prevent or modify them.

Whether through one of these bills or other measures, employers should expect New York to continue to impose new employee protections this year. It is critical to be aware of any new laws and prepare for compliance as soon as possible.

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January 9, 2022

Final NYS Sick Leave Rules Remain Unchanged, Yet Offer New Guidance

On December 22, 2021, the New York State Department of Labor adopted final regulations regarding the New York State Paid Sick Leave Law. The DOL adopted the rules as originally proposed on December 9, 2020, with no changes. However, in giving notice of the final adoption of the NYS sick leave rules, the DOL responded to many comments it had received on the proposed rules.

While still leaving many concerns unresolved, the DOL has provided some additional guidance to employers. Here’s a look at several key issues the DOL reviewed.

Carry Over

The New York Paid Sick Leave Law provides that employees can carry over unused sick leave from one year to the next. But it also permits employers to limit their employees’ use of sick leave to the statutory level (40 or 56 hours based on employer size) each year. Consequently, many employees will accrue sick leave that they’d never be eligible to use.

Especially where employers frontload sick leave meeting or exceeding the annual statutory requirement, the carryover requirement is at least a pointless administrative hassle. But it creates more tangible trouble in some cases, including situations where employers include sick leave with other forms of paid leave. This leave aggregation is permissible under the sick leave law. However, the law then seemingly requires that all such paid leave time must be carried over from year to year if unused, even where, as is often the case, the annual paid time off allowance exceeds the statutory sick leave mandate.

The DOL responded directly to three related carry-over questions. Unfortunately, their responses don’t offer much relief to employers struggling with the administrative or substantive mischief the carry-over conundrum can create. The DOL went further to emphasize the significance of the statutory carryover provision: “While the Department understands there may be occasional conflicts between an employer’s existing leave policies and the statute, the statute permits such alternative compliance so long as the standards set in the accrual, use, and carryover provisions are met”. Ironically, the DOL otherwise notes the potential benefits of frontloading sick leave “to avoid added complexity” in calculating leave accrual.

The DOL has found room to allow employers the option to let employees cash out some of their unused sick leave at the end of the year rather than carry it over to the next year.

Employee Rights

The DOL responded to two suggestions under this heading. One seemingly sought to restrict employee rights to use sick time. Another sought to expand on employee protections.

One commenter wanted to prevent new employees from using sick leave immediately upon accrual, fearing the risk of sick leave abuse. The DOL indicated that the law would not permit such a limitation.

Another commenter wanted the rules to include information on employees’ ability to file complaints and be free from retaliation for exercising their rights to use sick leave. The DOL noted that such provisions are already otherwise established by law.

In response to another comment (listed under “Other Leave Usage”), the DOL offered the general assertion that “The Department declines to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist.”

Collective Bargaining Agreements

The DOL made one response to comments on the NYS sick leave rules specifically addressing unionized workplaces. The DOL dismissed all comments seeking specific direction related to collective bargaining agreements because “These comments are outside the scope of this rulemaking, which does not directly address CBAs.” Not particularly helpful.

Employee Count

On the other hand, while finding the issue not to be “addressed in this rulemaking,” the DOL nonetheless offered its interpretation that employer coverage under the NYS Paid Sick Leave Law is based on their total U.S. employee count. In other words, not only employees working in New York.

The DOL offered no revision in response to comments on the rule requiring employers to count the highest number of concurrently employed employees. However, it indicated that it “may provide additional guidance for clarity as necessary.”

The DOL declined to address joint employer situations. Instead, it deferred to “existing and settled law.”

Documentation and Attestations

In response to commenters’ suggestions, the DOL indicated it will produce a template for employee attestations.

The agency also warns employers to be cautious when questioning sick leave usage: “An employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee”. The DOL goes on to warn of potential retaliation claims for improperly denying leave or disciplining employees who take it. There is also clarification that even when an employer fears abuse, it may not require documentation for leave less than three days.

The DOL also “declines to create a separate notice requirement for foreseeable leave.”

Notice to Employees

Commenters suggested that the DOL’s NYS sick leave rules include a requirement that employers provide notice of the law’s requirements to employees. The DOL declined to impose such an obligation on employers.

Payment Issues

In response to a comment for clarification of when employers must pay for used sick leave, the DOL confirmed that failing to pay sick leave is “equivalent to a failure to pay employee wages.”

The DOL likewise declined to amend the NYS sick leave rules to define the regular rate of pay. Instead, it offered that “Methods for determining the employee’s regular rate of pay already exists within the Labor Law, the regulations of the Department of Labor, relevant case law, and guidance.”

Overall Message to Employers

Not so subtly, the DOL’s commentary on the adoption of the NYS sick leave rules conveys a refusal to revisit the subject meaningfully. Among other assertions, the DOL dismissively asserts, “The current guidance and FAQs are sufficient in the areas referenced [by commenters] and as such topics are outside of the scope of the rule, no further response is appropriate.” It is disappointing that the DOL chooses to knowingly leave its guidance out of formal rulemaking in favor of addressing it in casual documents with significantly less legal weight. As such, employers are left with various compliance dilemmas in addition to the underlying cost of providing paid leave. It’s even more frustrating that the law complicates leave policies for employers who were already offering more paid time off than the law requires.

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