New York has expanded retaliation protections under New York Labor Law 215.
Employer retaliation now includes employees that take legally protected absences pursuant to federal, local, or state law.
Employers should review this law, especially as it relates to any leave of absence policies or so-called “no fault” attendance policies, to ensure compliance.
Governor Kathy Hochul was elected to a full term less than two weeks ago, and she continues to advance legislation that affects New York businesses. Bill A8092B/S1958 was passed by the New York State Legislature on May 31, 2022, but was not called up to the governor’s office until November 21, 2022. Gov. Hochul signed the bill on the same day.
The law, A8092B, amends New York Labor Law Section 215 prohibiting private sector employers from retaliating against employees that report alleged Labor Law violations. Specifically, Section 215 is amended in two places. First, it adds to the definition of protected activity under the statute to include an employee who uses any legally protected absence pursuant to federal, local, or state law. Notably, the amendment does not provide a definition as to what constitutes “legally protected absence pursuant to federal, local, or state law.” Numerous paid leave laws may be implicated including New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, as well as various unpaid leave laws including the Family and Medical Leave Act at the federal level, and multiple New York specific leaves (blood donation leave, bone marrow donation leave, military spouse leave, witness and victims of crime leave, volunteer emergency response leave, jury leave, voting leave). The broadly worded language in the law may also be interpreted to include workers’ compensation, disability, and unpaid leave as a reasonable accommodation under the Americans with Disabilities Act and New York Executive Law.
Section 215 is also amended to expand the definition of “threaten, penalize, or in any other 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.”
Section 215 permits both enforcement by the commissioner of labor as well as private causes of action by employees, with wide ranging and severe consequences for non-compliance ranging from civil penalties, back pay, liquidated damages, reinstatement, front pay, and reimbursement for costs and attorneys’ fees.
The law becomes effective 90 days after Gov. Hochul signed it into law.
This is not the first time in recent years that New York Labor Law Section 215 has been amended. In 2019, Section 215 was amended to state that “threaten, penalize, or in any other manner discriminate or retaliate against any employee includes threatening to contact or contacting U.S. immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member … to a federal, state, or local agency.”
As the scope of employee protections in New York continue to expand, employers are well advised to review this law in conjunction with any leave of absence policies with experienced counsel to ensure compliance. In particular, all private sector businesses with so-called “no-fault” attendance policies should certainly revisit those policies to make sure it is applied within the constraints of this law.
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