The New York City Sick Leave law was amended in May of 2018 to the Earned Safe and Sick Time Act (“ESSTA”). ESSTA allows employees to use their paid time off not only when they are sick, but if they or a family member are victims of domestic violence. Starting on March 20, 2024, employees will have a private right of action available to them for ESSTA violations. This article will discuss the new amendment to ESSTA and supplement our June 2018 article.
2024 Amendment to ESSTA
Effective March 20, 2024, ESSTA will be amended to allow “any person” to file a civil action for alleged ESSTA violations within two years of the date the employee knew or should have known of the violation. Filing a complaint with the New York City Department of Consumer and Worker Protection (DCWP) is not a prerequisite to bringing a civil suit. Employees who file a complaint with the DCWP are not barred from pursuing a civil action against their employer. Individuals are allowed to file both a civil suit and a complaint with the DCWP for the same alleged violation.
If an employee chooses to file both a complaint with the DCWP and a civil action in court for the same alleged violation, the DCWP will hold off on its own investigation until the civil suit is either dismissed without prejudice or withdrawn. If the case reaches a settlement or final judgment between the parties, then DCWP may dismiss the complaint, unless it determines that the alleged violation was not completely resolved by the settlement or judgment.
Damages
Employees who bring a civil suit may be awarded compensatory damages, or they may also be able to receive injunctive and declaratory relief, as well as attorney’s fees and costs. Compensatory damages may include payment for days on which sick leave was denied or when sick leave was taken but was unlawfully not compensated.
Penalties
Any person or entity found to be in violation of this amendment will be subjected to a civil penalty of $500 for their first violation. Subsequent violations that occur within 2 years of the previous violation will incur a $750 penalty. Succeeding violations after that will be subjected to a $1,000 penalty. These penalties may be imposed on a per employee or per instance basis.
Takeaway for Employers
To avoid potential liability under this new amendment, it is important for employers to review their Safe and Sick Leave policies to ensure they are compliant with ESSTA.