New York City Establishes Office of Labor Standards; Will Enforce Paid Sick Leave Law (NYC Finale Part 3)

New York City just finished off a strong year on the employment law front. The City Council passed laws that banned the box and all but eliminated credit checks. It also passed a law requiring employers to offer their employees pre-tax transit benefits and instituted a paired testing discrimination investigation program. The Department of Consumer Affairs continued to provide guidance on the paid sick leave law, while the Commission on Human Rights welcomed a new commissioner and implemented new initiatives designed to enhance the Commission’s enforcement efforts. It also released enforcement guidance on the ban the box and credit check laws. We cover the flurry of year-end activity in this three-part series. In our first installment, we looked at the Commission’s enforcement guidance on gender identity and expression. In our second installment, we covered the ban on caregiver status discrimination. In our final installment, we cover the City’s creation of an Office of Labor Standards and expected changes to the paid sick leave act rules.

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New York City has established an Office of Labor Standards that will enforce the City’s paid sick leave and transit benefits laws, and create and promote programs on worker education, safety and protection. The Council Speaker said the new Office would help workers better understand their rights and assist employers in complying with the law. The move comes as New York City prepares to amend its rules clarifying, and establishing requirements to implement, the paid sick leave law.

With the City’s paid sick leave law – the largest municipal law of its kind in the nation – firmly implanted – and the transit law now in effect – the Office of Labor Standards would take over the enforcement helm from the Department of Consumer of Affairs. This is an important change because unlike the Department of Consumer Affairs, the Office of Labor Standards will have a singular focus on the workplace and protecting workers’ rights. The Mayor will appoint a Director, and he or she will have the ability to receive and investigate complaints, serve subpoenas and impose civil penalties.

The Office will not be officially established until the spring. In the meantime, the Department of Consumer of Affairs has moved to amend the existing rules to the paid sick leave law. The DCA is conducting a hearing on the proposed rules next week. The proposed rules aim to do the following:

Provide additional guidance on calculating the number of employees in a business;
Address situations where employees are employed by a joint employer;
Define “temporary help firm” and define when temporary help firms are legally responsible for violations;
Allow an employer to set the minimum number of hours and time frame for the use of sick time;
Clarify the calculation of rate of pay of paid sick time for employees paid on a piecework basis;
Clarify that wage supplements need not be included in the rate of pay of paid sick time;
Require a business that takes ownership of another business to provide written sick time policies to employees at the time of sale, transfer, acquisition or assignment;
Address written sick time policies and what an employer must include in them;
Clarify what records employers must keep;
Make clear that an employer’s failure to keep or produce written sick time policies and records creates a reasonable inference that the department’s allegation against it is a fact;
Clarify that an employer’s failure to respond to a complaint or provide information requested by the Department regarding a complaint will be subject to a $500 penalty;
Establish relief to an employee if an employer’s policy or practice is not to allow an employee to accrue and/or use sick time;
Address the calculation of accruals and hours worked for certain employees;
Clarify that an employer may take disciplinary action against an employee who engages in a pattern of abuse of paid time;
Define the term “adverse employment action” as used in the definition of retaliation against an employee; and Clarify the department’s burden of proof for retaliation cases.