Since the May 5, 2018, amendment of the New York Safe and Sick Time Act (20 NYCRR §§ 20-911 et seq), the New York Department of Consumer Affairs (DCA) has ramped up compliance investigations of employers, issuing Notices of Investigation and adjoining requests for information concerning compliance. Those found incompliant may be assessed certain penalties or be subject to administrative proceedings.

The following is a brief summary of employer requirements under the New York Safe and Sick Time Act. Employers are encouraged to review their current policies and records to ensure they are in compliance.

The New York Safe and Sick Time Act

New York’s Earned Sick Time Act (ESTA), passed in 2013, required employers to provide eligible employees with up to 40 hours of leave per year for certain designated reasons, including an employee’s own medical needs or those of a covered family member.

On May 5, 2018, protections under ESTA were broadened and the law was renamed the Earned Safe and Sick Time Act (ESSTA). ESSTA requires employers to provide paid time off to eligible employees for circumstances resulting from the employee or family member being a victim of a family offense, sexual offenses, stalking or human trafficking. “Family members” under ESSTA also include individuals whose association with the employee is an equivalent of a biological family member.

In response to the 2018 amendments, the DCA Office of Labor Policy Standards (OLPS) also amended its rules, the most significant of which concern employers’ compliance with ESSTA. OLPS also updated its Employers FAQ to incorporate amendments.

Employer Compliance with ESSTA

ESSTA covers employers with five or more employees who work more than 80 hours in a calendar year. As with sick leave, safe leave accrues a rate of one hour of leave for every 30 hours worked, up until 40 hours worked in a year. Safe leave begins accruing on an employee’s first day of employment. Employees can use safe leave after 120 days of employment.

Notably, where employers do not frontload safe and sick leave on the first day of the new calendar year, employees must be permitted to carry over up to 40 hours of unused safe and sick leave from one calendar year to the new calendar year.

Under ESSTA, employers must provide employees with adequate notice of their rights, maintain a safe and sick time policy and keep detailed records of safe and sick time tracked.

• Notice of Employee Rights: Employers are to personally distribute a formal Notice of Rights upon hire, which informs employees of their rights to safe and sick time and their right to file a complaint against an employer for lack of compliance with ESSTA.
• Written Employer Policy: In addition to distribution of a formal Notice of Rights, employers are to develop and maintain their own policy concerning safe and sick time, which is to be personally distributed to all employees upon commencement of employment or within 14 days of the effective date of any changes to the policy. This policy must be in a single writing, and its requirements must meet or exceed the requirements of ESSTA.
• Recordkeeping: Employers are required to maintain records of ESSTA compliance for a minimum of three years. Employers are to keep current and past written safe and sick policies on hand. Additionally, employers are required to maintain employment, payroll and timekeeping records documenting compliance with ESSTA. These include, but are not limited to, records of: (1) employee contact information; (2) employee start and end dates; (3) employee exemption status; (4) employee hours worked per week; (5) date and time of safe and sick leave used and the amount paid; (6) changes in material terms of employment specific to certain employees; and (7) the date that the Notice of Employee Rights was provided to the employee and proof it was received.

DCA provides tools for employers to assist in keeping records of employees’ hours worked and safe and sick leave used. These tools can be accessed on DCA’s website.

DCA Investigations

OPLS may issue Notices of Investigation to employers for purposes of ensuring they are in compliance with ESSTA. DCA may investigate an employer on its own accord or after receiving a formal complaint from an employee.

As part of the investigation, DCA will request certain information from the employer, and the employer will generally be given 30 days to respond. DCA may also issue subpoenas or conduct on-site employer visits upon 30 days’ notice to the employer.

Should DCA find an employer fails to keep required records under ESSTA or otherwise lacks compliance, the employer may be subject to certain civil penalties or be issued a Notice of Hearing before an administrative tribunal. Penalties range from $500–$1,000 for individual violations. Where investigations result in administrative hearings, an impartial judge will hear testimony from the employer and DCA and may assess restitution be paid to certain employees for an employer’s violations. Employers can settle or rectify alleged incompliance prior to their hearing date.

DCA engaged in investigations prior to ESSTA’s 2018 amendment, reporting receipt of 346 complaints in 2017. As a result of those complaints, 47 employers were issued notices of violation and three administrative hearings were held. Most complaints were resolved through settlement or were administratively closed. Fines of $491,572.45 were assessed, and employees were paid $2,046,190.62 in restitution.