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New York City Creates a Private Right of Action for Employees’ Earned Safe and Sick Time

25 Feb

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Update Applicable to:Effective date
All employers with 1 worker in New York CityMarch 20, 2024


What happened?

On January 20, 2024, New York City enacted a law that creates a private right of action allowing employees to file lawsuits alleging violations of the city’s Earned Safe and Sick Time Act (ESSTA). 

This is because the bill landed on mayor Adams’ desk on December 20, 2023, in which he had 30 days to sign it, veto, or take no action. Governor Adams took no action and therefore, the bill became law and will take effect on March 20, 2024.

What are the details?

  • The law will allow any person alleging a violation of the ESSTA to file lawsuits in any court of competent jurisdiction with or without first filing a complaint or notifying the Department of Consumer and Worker Protection (DCWP).
  • Complainants will have two years from learning of a potential violation to file such a claim.
  • If an individual has both filed a complaint with the DCWP and commenced a civil action for the same alleged violation, DCWP will stay their investigation of the alleged violation until it receives notice that the civil action is withdrawn or dismissed without prejudice.
  • If the DCWP receives notice of a final judgment or settlement, the agency will dismiss the complaint unless it determines that the violation was not resolved by such judgment or settlement.
  • The individual must notify the DCWP within 30 days of the date that the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.
  • The person or entity shall provide the DCWP with a written response and other information as requested within 14 days of a written notification of an investigation.
  • In addition to compensatory damages already provided, the amendment allows individuals to seek injunctive and declaratory relief, attorney’s fees and costs, and other relief that the court deems appropriate.
  • The new law will change allowable civil penalties that may be imposed under the ESSTA to be “…on a per employee and per instance basis.”
  • The DCWP retains authority to initiate an investigation on its own initiative.
  • The filing of a complaint to the DCWP is not a prerequisite or requirement to sue in any court of competent jurisdiction.
  • The DCWP will publish an annual report on its website of number, nature of complaints, number of unsubstantiated, notices of violation issued, number of civil actions, number of notifications of civil actions, investigations opened and closed and average time of a complaint to be resolved.


Business Considerations

  • Review and update your sick time policies in accordance with the amendments, especially if you use the accrual method, because the law expands penalties for violations regarding the accrual and use of sick and safe time.
  • Review and update your procedures to comply with the written response to any requirement by the DCWP.
  • Study the annual report from the DCWP to better understand and prepare in case of a notice or complaint.
  • Plan communication and training of your HR personnel to comply and prevent ESSTA violations.


Resources

Source References

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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