New York Paid Sick Leave: Critical Mistakes That Are Leading To Litigation

As most New York City employers already know, New York City enacted a paid sick day law which became effective on April 1, 2014.   Let’s recap:

  • Employers with five or more employees who work more than 80 hours in a calendar year in New York City must provide paid sick leave.
  • Employers with one to four employees who work more than 80 hours in a calendar year in New York City must provide unpaid sick leave.
  • An employer of a domestic worker who has worked for the employer for at least one year and who works more than 80 hours in a calendar year must provide up to two days of paid sick leave.
  • Employees accrue one hour for every thirty hours worked, up to a maximum of 40 hours per calendar year.

It is important to note that the Act does not apply to employees covered by a valid collective bargaining agreement which expressly waives the Act’s provisions, and which provides comparable benefits for the employees in the form of paid days off.

The regulations are very straight forward and there are stiff penalties for failure to provide the sick leave.  The Department of Consumer Affairs, who enforces the Paid Sick Leave Law, has received 472 valid complaints from employees in 2015.  The majority of the complaints (61%) were for employers not providing the required Notice of Employee Rights; 43% for employers not paying for sick leave; 21% for employers not having a sick leave policy in writing or having an inadequate policy; and 21% for retaliation. Nationally recognized employers, such as FedEx ($33,600 fine) and Best Buy ($525 fine) were amongst the first to be investigated. However, smaller organizations, such as Primo Cappuccino, which operates a food cart in Penn Station, was investigated and fined $1,225 and ordered to repay $912 in restitution.

Employers should be aware that they are required to:

  • Issue a Notice of Rights under the Act to all employees
  • Have a written policy that meets or exceeds the Act provisions
  • Notice of Rights posters must be conspicuously posted
  • Notice of Rights must be in English and in the primary language spoken by the employee, provided that the Department of Consumer Affairs has made available a translation of the notice in that language

Employers are required to retain records pertaining to employees’ sick time leave for three (3) years.

 



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