As we had previously reported, the New York City Council passed a bill that creates a private right of action for individuals claiming violations of the NYC Earned Safe and Sick Time Act (“ESSTA”). The Council presented the bill to Mayor Eric Adams on December 20, 2023, after which he had 30 days to either sign the bill into law, veto it, or take no action. Since Mayor Adams took no action within 30 days of receiving it, the bill became law and will take effect on March 20, 2024.
Presently, the sole enforcement mechanism for alleged violations of the ESSA is to file a complaint with the NYC Department of Consumer and Worker Protection (“DCWP”). The DCWP is in turn required to investigate the claim and if it is determined that a violation has occurred, the claim goes before an administrative law judge for further proceedings. Once the new law takes effect in March, claimants will still be able to file complaints with the DCWP, but they will also be able to bring a civil action for alleged violations of ESSTA in any court of competent jurisdiction. Claimants will have two years from the date they knew or should have known about the alleged violation to bring an action.
Where an individual has both filed a complaint with the DCWP and commenced a civil action against their employer for the same alleged violation, DCWP will stay their investigation of the alleged violation until it receives notice that the civil action is withdrawn or dismissed without prejudice. If DCWP receives notice of a final judgment or settlement, the agency will dismiss the complaint unless it determines that the violation was not resolved by such judgment or settlement. The individual must notify DCWP within 30 days of the date that the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.
In addition to compensatory damages already provided for under the ESSTA, the new amendment will allow individuals to seek injunctive and declaratory relief, attorney’s fees and costs, and other relief that the court deems appropriate.
Lastly, the amendment expands ESSTA’s civil penalty provisions for entities found to be in violation of the law’s provisions regarding the accrual and use of sick or safe time or retaliation to be imposed “on a per employee and per instance basis.”
Employers covered by ESSTA should ensure that they are staying on top of compliance with ESSTA as the consequences for failing to do so are about to significantly increase.