On November 21, 2022, Governor Kathy Hochul signed into law Assembly Bill A8092B, which prohibits employers from retaliating against employees who take lawful absences pursuant to federal, state or local law.  The law becomes effective February 19, 2023. 

Under Section 215 of the New York Labor Law, employers are prohibited from taking adverse employment action against employees who complain of an alleged Labor Law violation or otherwise assist in a state investigation into 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 (NYDOL) or New York Attorney General regarding an alleged violation of the Labor Law.

The new law expands these retaliation protections under section 215 of the Labor Law and effective February 19, 2023, employers may not retaliate against employees who are absent from work for a reason covered by federal, local or state law. Such leaves of absences include, but are not limited to:

• The federal Family and Medical Leave Act (FMLA)
• New York State Paid Sick Leave
• The New York City Paid Safe and Sick Leave Law
• New York State Paid Family Leave
• COVID-19 leave laws

The law also expands the definition of “threaten, penalize, or in any manner discriminate or retaliate against any employee” to include “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”  The effect of this amendment is that if employers discipline workers by assessing “points” when an employee has used any legally protected absence, then it will constitute retaliation under the Labor Law.

A fine of up to $10,000 can be imposed for the first violation of the new law and if an employer is found to have previously violated the Labor Law in the previous six years, this fine can be increased to as much as $20,000. Further, employees who are discharged from employment may also be entitled to back pay and liquidated damages for each violation.