Effective March 20, 2024, the New York City Earned Sick and Safe Time Act (ESSTA) creates a private cause of action for alleged statutory violations. Employers may now face potential civil and/or class actions, in addition to administrative complaints filed at the Department of Consumer & Worker Protection (DCWP) for a “violation” of the Act.

The new amendments to enforcement and relief available expand what was previously the exclusive domain of the DCWP to allow “any person” alleging a violation to “commence a civil action in any court of competent jurisdiction” alleging a violation of the ESSTA “within 2 years of the date the person knew or should have known of the alleged violation.” The amendments appear to leave open the door to violations of any kind, whether based on the accrual and use provisions for sick leave time and compensation, or lack of compliance with statutory notifications and reporting requirements formerly in the exclusive purview of the DCWP.

Filing an administrative complaint with the DCWP is neither a prerequisite nor a bar to bringing a civil action.  Indeed, a court action can run concurrent to a DCWP complaint for the “same alleged violation.” However, the DCWP will stay its investigation until it is notified that the “civil action is withdrawn or dismissed without prejudice” or will dismiss the complaint after a final civil court judgment or settlement, unless it determines the administrative complaint “alleges a violation not resolved” by the civil judgment or settlement.
 
A complainant can seek the same relief from the court, which the DCWP previously had authority to impose, including:

• The greater of 3 times the wages that should have been paid or $250 for each instance of safe/sick time taken by an employee but unlawfully not compensated by the employer;
• $500 for each instance of safe/sick time was requested but denied and not taken, or where the leave was unlawfully conditioned upon searching for or finding a replacement worker, or where the employee was required to work additional hours or make up hours;
• $500 plus full compensation including wages, benefits lost and equitable relief for each instance of a retaliatory or adverse job action such as threats, intimidation, discipline, demotion, suspension, harassment, discrimination, reduction in hours or pay;
• $2,500 plus full compensation including wages, benefits lost and equitable relief, including reinstatement for each instance of unlawful discharge from employment; and
• $500 for each employee covered by an employer's official or unofficial policy or practice of not providing or refusing to allow the use of accrued safe/sick time.

In addition, a claimant can now also seek unspecified additional injunctive and declaratory relief from the court, attorneys’ fees and costs, and other relief deemed appropriate by the court.

Employers should take heed that private claims seeking damages, injunctive and declaratory relief (as well as litigation incentivizing attorney fees) might be brought for alleged violations concerning ESSTA mandatory employee notifications and documentation as well as compensatory damages and penalties in connection with accrual and leave violations.
 
Worthy of note, the amendments did not alter additional penalties, which can remain payable to the City of New York for violations assessed on a “per employee” and “per instance” basis under the ESSTA. Accordingly, if concurrent employee complaints are filed at the DCWP, the DCWP can, and presumably would, still ultimately proceed on any complaint that “alleges a violation not resolved” by the civil judgment or settlement. The DCWP can still assess escalating civil penalties against an employer, payable to the City of New York. These penalties include $500 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” of ESSTA’s accrual and use of safe or sick leave or retaliation against those attempting to exercise their rights under the act.

The new employee private right of action is an additional reason for employers to be ever attentive to sick leave policies and procedures. Generally, the ESSTA requires employers to provide 40 to 56 hours of paid or unpaid leave to their New York City employees (depending on the size of the employer). Leave can accrue (one hour for every 30 hours worked commencing upon hire) or be front-loaded. Qualified reasons for safe/sick time include:

• Employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care.
• Employee’s family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care.
• Closure of an employee's place of business by order of a public official due to a public health emergency or the employee's need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.
• Time needed to obtain social and legal services for the employee or a family member who is the victim of domestic violence, human trafficking, stalking and/or unwanted sexual contact.

The ESSTA further requires employers to provide employees with written notice of their safe/sick time rights, including the accrual and use of safe/sick time, the right to be free from retaliation and right to file a complaint with the DCWP in both English and the primary language spoken by the employee. The employee’s pay statement, or other form of written documentation provided to the employee each pay period, must contain the amount of safe/sick time accrued, amount of sick time used during a pay period, as well as the employee's total balance of accrued safe/sick time. Failure to do so can result in a civil penalty not to exceed $50 per employee. The ESSTA also requires employers to document and retain records demonstrating compliance for three years and to grant DCWP access to review its records upon reasonable notice.

The March 2024 amendment requires the DCWP to annually report on its website the number of civil actions filed (to the extent known) and number of investigations opened and closed, in addition to the total number of complaints filed at the DCWP (including the number of violations issued and complaints not substantiated) and the average time for a complaint to be resolved.

In sum, recent amendments highlight the need for employers to:

• Review their policies and procedures to ensure compliance with ESSTA provisions for both accrual and use of safe/sick leave time;
• Engage manager awareness and training for appropriate response to employee requests for safe/sick leave;
• Ensure employees receive proper notification of their ESSTA rights, including the calculation of their safe/sick leave each pay period (on paystubs or other written material), as well as maintain compliance records.