New York City Creates a Right to Sue for Violations of Paid Leave Law

On Jan. 20, New York City enacted a law that will create a private right of action allowing employees to file lawsuits in court alleging violations of the city’s Earned Safe and Sick Time Act (ESSTA) within two years of learning of an alleged violation.

The new law will allow any person alleging violations of the ESSTA to file lawsuits with or without filing a complaint with the Department of Consumer and Worker Protection (DCWP). Plaintiffs will have two years from learning of a potential violation to file such a claim.

The new law, which was passed by the New York City Council on Dec. 20, 2023, was adopted after New York City Mayor Eric Adams returned the bill unsigned. It will take effect on March 20.

The ESSTA generally provides covered employees the right to use safe and sick leave for the care and treatment of themselves or a family member, and to seek legal and social services to protect themselves or a family member who may be a victim of domestic violence, unwanted sexual contact, stalking, or human trafficking. The ESSTA requires employers to provide employees between 40 and 56 hours of paid or unpaid leave, depending on the size of the employer.

In October 2023, the DCWP finalized new regulations to amend its regulations concerning the ESSTA to align with amendments to the law passed in 2020. The new regulations clarify how employer size will be determined, explain how remote workers will be counted, and flesh out notice requirements and accrual methods.

Penalties and Remedies

The new law will change allowable civil penalties that may be imposed under the ESSTA on a per employee and per instance basis. Any entity or person found to be in violation of the ESSTA’s provisions for the accrual and use of safe or sick leave or retaliation against someone attempting to exercise their rights under the law could be found liable for $500 in civil penalties for the first violation, up to $750 for a second violation, and up to $1,000 for each succeeding violation within two years of any previous violation.

Moreover, in addition to compensatory damages, plaintiffs will now be able to recover injunctive and declaratory relief, attorneys’ fees and costs, and other appropriate damages.

Prior to the new law, individuals only had a right to file a complaint with the DCWP, which was required to investigate the claim and keep the complainant notified of the progress. If DCWP determined that a violation occurred, the claim was then sent to an administrative tribunal.

The new law amends this process to allow any person to file a civil action in court, in addition to a DCWP complaint for the same alleged violation. If a civil action and a DCWP complaint are filed, then the DCWP will stay its investigations until it is notified that such civil action is withdrawn or dismissed without prejudice.

After a final judgment or settlement, the department will then dismiss the complaint unless it determines the complaint alleges a violation not resolved by such judgment or settlement.

Complainants will have 30 days to notify the DCWP in a manner to be determined by the department. Still, the DCWP retains the authority to open an investigation on its own initiative.

Public Reporting

Additionally, the new law amends the DCWP’s public reporting requirements by requiring the department to annually report on its website:

• The number and nature of complaints filed, including the number of such complaints not substantiated and the number of notices of violations issued.
• The number of civil actions filed to the extent the DCWP was notified of such actions.
• The number of investigations the DCWP opened and closed.
• The average time it takes for a complaint to be resolved.

Next Steps

The new law could open employers up to potential liability from employees for the failure to provide safe and sick leave time and any compensation required by the ESSTA. New York City employers may want to review their safe and sick leave policies in light of the ESSTA, as amended in 2020, and the DCWP’s newly amended regulations.

Jamie Haar, Joseph Flanagan, and Zachary Zagger are attorneys with Ogletree Deakins in New York City. © 2024. All rights reserved. Reprinted with permission.