The New York City Council has 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). Unless Mayor Eric Adams vetoes the bill within 30 days, it will become a law and apply to all employers covered by ESSTA.
By way of background, 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. 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).
The recently proposed amendment would allow individual employees to file a complaint in court against the employer, versus going through the DCWP. This could increase the number of complaints against employers in New York City.
The proposed amendment to ESSTA would allow employees who allege a violation of their rights to commence a civil action in court, where employees could seek compensatory damages, injunctive and declaratory relief, attorneys’ fees and costs, as well as other relief the court deems appropriate.
Also, the proposed amendment would increase the amount of monetary damages that individual employees could recover should they pursue recourse individually. Specifically, while 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 proposed amendment would allow such penalties per instance of violation.
The statute of limitations for commencing a civil action is two years.
Employers covered by ESSTA should write to the Mayor’s office and urge him to VETO this bill. The DCWP already imposes significant burdens on employers in New York City with the manner with which it enforces the law and the penalties it seeks, but by empowering employees to seek recourse independently in court, employers will face additional litigation and cost expenses associated with ESSTA compliance.