Article contributed by Nicola Ciliotta, Ellenoff Grossman & Schole LLP
On February 20, 2023, a new law took effect in New York explicitly prohibiting employers from retaliating against employees who take legally protected time off from work.
The law, signed by Governor Kathy Hochul in November 2022, amends the New York Labor Law by clarifying that it is illegal to discipline employees for taking legally protected absences for medical, caregiving, religious, or other needs under any federal, state, or local law. The new amendment also provides additional remedies for employees and penalties for employer non-compliance. Businesses should take immediate action to ensure compliance.
Clarification and Expanded Penalties for Employers
Prohibited retaliation is nothing new – even before this law was passed, employers were prohibited from penalizing employees for taking protected leave. Nonetheless, as per surveys referenced by the New York State Department of Labor, many employers, either knowingly or unknowingly, seemingly had policies in place that could be considered illegal retaliation. Accordingly, the State passed the law to “make it explicitly clear” that workers cannot be punished or subjected to discipline for lawful absences taken under federal, state, or local law.
Besides clarifying the state of the existing law, the new law also provides employees with additional remedies not previously available. Specifically, whereas employees previously only had a private right of action for protected leave retaliation under certain state laws, they can now directly sue their employers for back pay, front pay, reinstatement, and/or liquidated damages if they feel they have been retaliated against for taking leave pursuant to any federal, state, or local leave law.
The new law also adds significantly stiffer penalties for non-compliance. The Department of Labor itself can now impose fines on employers of up to $10,000 for initial violations and up to $20,000 for every subsequent violation. The Department of Labor can also conduct an investigation and award aggrieved employees owed compensation, reinstatement, and liquidated damages.
What Constitutes Retaliation?
Retaliation under this new law does not only mean termination of employment. It is defined extremely broadly and can mean, among other things, a reduction in work hours, a change in schedule, an undesirable reassignment, disciplinary action, more critical supervision, a withdrawal of previously allowed privileges, or a threat to take any of the aforementioned retaliatory actions.
Importantly, the new law also specifically mentions and prohibits employers from using certain “no-fault” attendance policies, whereby employees are penalized for absences or tardiness for any reason through an informal “point” or “demerits” system.
Attendance and punctuality are crucial in the hospitality industry because finding replacements for last-minute callouts can be frustrating and problematic. For that reason, hospitality establishments often use such “no-fault” attendance policies to track attendance, reward punctual employees, and discipline unreliable employees. It is important to remember that, while “points” or “demerits” can be issued to employees who are absent for reasons that are not legally protected e.g., vacation time, simple carelessness, etc., this law makes it explicitly clear that such policies cannot be issued to employees who are taking legally protected time off.
Which Absences Are Legally Protected?
The new law protects New York-based employees who are taking time off under any federal, state or local law. This, of course, includes leaves of absence taken pursuant to the most common leave laws, e.g., the federal Family and Medical Leave Act, the New York State Paid Family Leave Law, and the New York State and City paid sick leave laws.
It is crucial to also remember that the new law does not only cover absences under these commonly known leave laws but also all other available protected absences including, but not limited to absences taken because employees:
- Have been infected by, exposed to, or getting vaccinated for COVID-19.
- Are suffering from a disability.
- Were injured at work.
- Have been called to jury duty.
- Have been a victim of domestic violence.
- Have been called to military service.
For a more detailed breakdown of various leave requirements, we urge you to read Ellenoff Grossman & Schole LLP’s prior January 2022 and September 2020 articles, covering certain leaves of absence.
Ensuring Compliance
New York businesses should take immediate steps to ensure employees are not being illegally penalized for taking protected absences. Specifically, businesses should, with the assistance of counsel, closely review their time and attendance policies, confirm that their supervisors and managers are aware of this new law and, if necessary, conduct trainings to ensure complete understanding of all obligations with respect to leave policies. We urge you to take immediate action because the law is already in effect, so your business may be unknowingly committing violations right now. Furthermore, taking preventive action is particularly crucial now, given the fact that the Manhattan District Attorney recently announced the creation of a new “Worker Protection Unit” to investigate and prosecute violations of labor and employment laws in industries with “high rates of worker exploitation”, which specifically refers to “fast food and restaurants”.
Nicola Ciliotta is an Associate in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City. His expansive labor and employment practice encompasses everything from representing employers in court and other forums, to advising businesses on all aspects of the employment relationship. Mr. Ciliotta has significant experience representing clients in state and federal court, grievance and arbitration proceedings, and before various government agencies in employment disputes involving allegations of, inter alia, discrimination, sexual harassment, retaliation, wrongful termination, hostile work environment, and unpaid wages. Mr. Ciliotta’s practice also consists of conducting internal investigations and advising businesses on compliance with federal, state, and local labor laws and regulations. Nicola Ciliotta can be reached via email at nciliotta@egsllp.com or by phone at 212-370-1300.
