Workers in NY Cannot be Punished for Lawful Absences

It will soon be illegal for an employer to discipline an employee who takes legally protected time off from work. On November 21, 2022, Governor Kathy Hochul signed a bill that amends New York Labor Law § 215, which prohibits private sector employers from retaliating against employees who report alleged Labor Law violations. The new law goes into effect on February 19, 2023.

Retaliation Protections Under the Labor Law

New York Labor Law § 215 prohibits employers from taking adverse employment action against employees who complain of an alleged Labor Law violation or otherwise assist in a state investigation of such a violation. Specifically, employers cannot discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because the employee:

• made a good faith complaint that their employer violated the Labor Law; or
• cooperated with an investigation by the New York State Department of Labor or New York Attorney General regarding an alleged violation of the Labor Law.

In 2019, Section 215 was amended to specify that the phrase “threaten, penalize, or in any other manner discriminate or retaliate” against an employee also includes threatening to report (or actually reporting) the citizenship or suspected immigration status of an employee or an employee’s family member to immigration authorities because the employee made a complaint or otherwise participated in an investigation of an alleged Labor Law violation.

No Retaliation for Lawful Absences

The recent amendments to Section 215 expressly prohibit employers from “assessing any demerit, occurrence, or any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action” for the use of “any legally protected absence under federal, local, or state law.”

This means an employer cannot threaten, penalize, discipline, fire, or otherwise discriminate or retaliate against an employee for their use of lawful absences. In other words, the employer cannot use an employee’s protected leave of absence as a factor when making employment decisions.

What is a Legally Protected Absence?

The amendment does not define what constitutes a “legally protected absence pursuant to federal, local, or state law”; however, it likely includes leave under the federal Family Medical Leave Act, New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave.

Because the term is so broad, it may also include Workers’ Compensation, disability, and other legally protected unpaid leave scenarios.

How does this affect “No-Fault” attendance policies?

Many employers use “no fault” attendance policies to control and reduce employee absences and tardiness. Under a no-fault policy, employees absent from work are assessed “points,” “demerits,” or “occurrences” for taking leave, regardless of the reason for the absence. Such policies trigger discipline against an employee if they accumulate enough points.

While these policies provide exemptions for legally protected absences, many businesses are accused of not making workers’ rights clear at the outset, leading them to believe that they will still be penalized for taking legally protected leave.

The amendments to the Labor Law seek to curtail no-fault policies. Thus, employers with “point” or “demerit” based absence policies should review them for compliance with the new law, especially considering the law’s prohibition on issuing points if they “could” trigger disciplinary action.

How will the new law be enforced?

Section 215 permits enforcement by the NYS Department of Labor or NYS Attorney General. An employee may also bring a private cause of action against their employer. Employees must sue within two years of the violation, regardless of the dates they were employed with the employer.

The law contemplates a fine of up to $10,000 for the first violation. If the employer violated the Labor Law in the previous six years, they can be fined up to $20,000. Moreover, employees who are fired may also be entitled to back pay, liquidated damages, reinstatement, front pay, and reimbursement for costs and attorney’s fees.

Practical Advice

We encourage employers to be familiar with the amendments to the Labor Law to ensure future compliance. We also encourage employers to revise or eliminate no-fault attendance policies that may be contrary to the Labor Law.

Please contact us if you have questions about the new law or other labor and employment related matters.