December 2022: New York Enacts Law Stating Workers Shall Not Be Punished For Lawful Absences

Update Applicable to:
All employers in the state of New York.

What happened?
On November 21, 2022, Governor Hochul signed Assembly Bill A8092B (AB A8092B) into law, which amends New York Labor Law Section 215 prohibiting private sector employers from retaliating against employees that report alleged Labor Law violations.

What are the details?
Effective 90 days after signage (February 19, 2023), AB 8092B amends New York Labor Law Section 215 prohibiting private sector employers from retaliating against employees that report alleged Labor Law violations. Specifically, Section 215 is amended in two places.

First, it adds to the definition of protected activity under the statute to include an employee who uses any legally protected absence under federal, local, or state law. The amendment does not define a “legally protected absence under federal, local, or state law.” Numerous paid leave laws may be implicated, including New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, as well as various unpaid leave laws, including the Family and Medical Leave Act at the federal level, and multiple New York specific leaves (blood donation leave, bone marrow donation leave, military spouse leave, witness and victims of crime leave, volunteer emergency response leave, jury leave, voting leave). The broadly worded language in the law may also be interpreted to include workers’ compensation, disability, and unpaid leave as a reasonable accommodation under the Americans with Disabilities Act and New York Executive Law.

Section 215 is also amended to expand the definition of “threaten, penalize, or in any other manner discriminate or retaliate against any employee” to include “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.”

Section 215 permits both enforcement by the commissioner of labor and private causes of action by employees, with wide-ranging and severe consequences for non-compliance ranging from civil penalties, back pay, liquidated damages, reinstatement, front pay, and reimbursement for costs and attorneys’ fees.

This is not the first time New York Labor Law Section 215 has been amended in recent years. In 2019, Section 215 was amended to state that “threaten, penalize, or in any other manner discriminate or retaliate against any employee includes threatening to contact or contacting U.S. immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member … to a federal, state, or local agency.”

For more information, please see the links below:

Assembly Bill A8092B (AB A8092B)

Article 1 – Article 2

What do employers need to do?
Employers should review the links provided above and their “no-fault” attendance policies to ensure they are within the constraints of the law once it goes into effect on February 19, 2023.