The central theses:
New York has expanded protections from retaliation under New York Labor Code 215.
Employer retaliation now includes employees who take legally protected time off under federal, local, or state law.
Employers should review this law, particularly with regard to leave 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 push legislation affecting New York businesses. Bill A8092B/S1958 was passed by the New York State Legislature on May 31, 2022, but was not appointed to the Governor’s Office until November 21, 2022. Governor Hochul signed the bill into law on the same day.
Law A8092B amends Section 215 of the New York Labor Code, prohibiting private sector employers from retaliating against workers who report suspected labor law violations. In particular, § 215 will be changed in two places. First, it adds to the statute’s definition of protected activity to include an employee who is taking advantage of a legally protected absence under federal, local, or state law. In particular, the amendment does not provide a definition of what constitutes a “legally protected absence under federal, local, or state law.” Numerous paid leave laws may be affected, including New York sick leave with pay, New York paid family leave, New York with paid COVID-19 leave, and New York with paid immunization leave, as well as various unpaid leave laws, including the Family and Medical Leave Act under federal and several New York-specific leaves (blood donation leave, bone marrow donation leave, military spousal leave, witness and crime victim leave, voluntary emergency response leave, jury leave, election leave). The broad language of the law can also be construed to include worker’s compensation, disability and unpaid leave as reasonable accommodation under the Americans with Disabilities Act and the New York Executive Law.
Section 215 is also amended to include the definition of “threatening, punishing or otherwise discriminating against or retaliating against an employee” to include “the assessment of errors, incidents, other points or deductions from an allotted time reserve that are subject to disciplinary action or an employee subject to disciplinary action, which may include, but is not limited to, being denied promotion or loss of salary.”
Section 215 allows enforcement by the Commissioner of Labor as well as private causes of action by workers, with wide and serious consequences for non-compliance ranging from civil penalties, back payments, penalties, reinstatement, advance payments and reimbursement of expenses and attorneys’ fees.
The law will come into effect 90 days after it is signed by Governor Hochul.
This is not the first time in recent years that Section 215 of the New York Labor Code has been amended. In 2019, Section 215 was amended to require “to threaten, punish, or otherwise discriminate against or retaliate against any employee, including threatening to contact or report to U.S. immigration authorities, or otherwise reporting or Threatening to report an employee’s suspected citizenship or immigrant status, or the suspected citizenship or immigrant status of an employee’s family or household member… to any federal, state, or local authority.”
As the scope of worker protections in New York continues to expand, employers are well advised to review this law, in conjunction with any furlough regulations, with experienced attorneys to ensure compliance. In particular, all private sector companies with so-called “correct” attendance policies should review those policies to ensure they are being applied within the constraints of this law.