As we previously reported, effective March 20, 2024, the New York City Earned Safe and Sick Time Act (“ESSTA”) now allows employees to bring a private right of action for alleged violations of ESSTA.  Employees will have two years from the date they first knew or should have known about the alleged violation to file a lawsuit. 

Before the amendment, employees alleging violations of the ESSTA could only seek administrative action by filing a complaint with the Department of Consumer and Worker Protection (“DCWP”).  The amendment now allows any person to “commence a civil action in any court of competent jurisdiction” alleging a violation of the ESSTA “within 2 years of the date the person knew or should have known of the alleged violation,” and the filing of a complaint with the DCWP will be “neither a prerequisite nor a bar to bringing a civil action.”

When a complaint is filed with the DCWP, it proceeds with an investigation.  If an employee files a private cause of action alleging the same violation, the DCWP will stay its investigation until the DCWP is notified the civil action is withdrawn or dismissed without prejudice. Upon notice of a final judgment or settlement in the civil action, the department will dismiss the complaint unless the department determines the complaint alleges a violation not resolved by such judgment or settlement.

Pursuant to the amended law, any violation of the ESSTA’s provisions for the accrual and use of safe or sick leave could result in $500 in civil penalties for the first violation and up to $750 for a second violation and up to $1,000 for each succeeding violation within two years of “any previous violation.  In addition, complainants will be able to recover injunctive and declaratory relief, attorneys’ fees and costs, and other damages deemed appropriate.

As a reminder, the ESSTA generally requires employers with between five and 99 employees to provide up to 40 hours of annual sick leave; employers with 100 or more employees must provide up to 56 hours of annual sick leave.  Sick leave may be used for purposes including an employee’s own or a covered family member’s mental or physical illness or need for a medical diagnosis, care or treatment, or to obtain services in connection with family offense matters, sexual offenses, stalking, or human trafficking. 

New York City employers should review their policies to ensure compliance with all of the ESSTA’s requirements.  Should you have any questions please contact Ali Law Group.