Update: This law was enacted on January 20, 2024.  It goes into effect March 20, 2024.

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On December 20, 2023, the New York City Council passed a bill (Proposed Int. No. 563-A) that would create a private right of action to seek damages and other relief for violations of New York City’s Earned Safe and Sick Time Act (ESSTA). New York City Mayor Eric Adams has 30 days to sign, veto, or take no action.  If he does not veto the bill within 30 days, it will become law.

ESSTA permits employees to use ESSTA leave for the care and treatment of sickness affecting themselves or a family member or to seek legal and social service assistance, or take other safety measures if the employee or a family member is a victim of an act or threatened act of domestic violence or unwanted sexual contact, stalking, or human trafficking. The amount of safe and sick time an employee is entitled to and whether that time is paid or unpaid depend on the size of the employer.¹ Currently, the law permits employees who claim a violation of their rights under ESSTA to file a complaint with the New York City Department of Consumer and Worker Protection (DCWP). Thus, by creating a private right of action for purported ESSTA violations, this bill would be a substantial change in the enforcement mechanism for ESSTA as well as expand the remedies available to aggrieved employees.

The proposed amendment to ESSTA would allow employees who allege a violation of their rights to commence a civil action in court. Such an action could seek compensatory damages,² injunctive and declaratory relief, attorneys’ fees and costs, as well as other relief the court deems appropriate. The current law permits the DCWP to impose a civil penalty upon an entity or person found to have violated ESSTA of $500 for the first violation, $750 for subsequent violations that occur within two years of any previous violation but not to exceed $750 for the second violation, and $1000 for each succeeding violation. The bill amends this aspect of the law to permit imposition of such penalties per instance³ of violation. The statute of limitations for commencing a civil action is two years.

Under the proposed amendment, employees can still file complaints with the DCWP. Such a filing is not a prerequisite to filing a civil action in court, nor would failure to do so bar such an action. If a civil action is commenced, the proposed amendment would require the DCWP to stay its investigation (if it is investigating the same alleged violation as asserted in the civil action) and to dismiss the DCWP complaint upon notice of a final judgment or settlement in the civil action that fully resolves the claim. The proposed amendment provides that the DCWP retains the right to open an investigation into alleged violations on its own initiative.

If this bill becomes law, it will become effective 60 days after enactment. 

Recommendations

Employers should review their leave policies and ensure their human resources and benefits managers are trained on ESSTA compliance. Although ESSTA has always provided employees recourse if they believed their rights were violated, and the violations of the New York State Sick Leave law may already be prosecuted in court, the future availability of a private right of action for ESSTA violations could drastically change the potential exposure of employers to damage claims for ESSTA violations going forward, as plaintiff’s attorneys may be empowered to prosecute claims, seek private settlements, and potentially assert class actions under ESSTA.

Littler will continue to monitor and report on any significant developments, including if and when this bill is enacted.