Each day this week, we will “unwrap” one of five pressing employment law issues on the 2015 horizon for New York state and city employers. Yesterday, we covered the minimum wage hike. Today will cover the anticipated enforcement of two new NYC laws.
Two of the major 2014 storylines for the NYC business community were implementation of the city’s paid sick leave law and amendment of the NYC Human Rights Law (NYCHRL) to require accommodations for pregnant employees. In 2015, NYC employers should expect these two laws to emerge from their infancy and get some teeth.
The Earned Sick Time Act: On April 1, 2014, the NYC Earned Sick Time Act (ESTA) took effect, requiring employers with five or more workers to provide paid sick leave to all employees who perform more than 80 hours of work in NYC in a calendar year. Employers with fewer than five workers are required to provide comparable unpaid sick leave benefits. Recently, the NYC Department of Consumer Affairs (DCA), the agency that enforces ESTA, issued instructive ESTA FAQs and outlined the requirements for ESTA-compliant written sick leave policies.
In late October, DCA Commissioner Julie Menin testified before the NYC Council that, in the months since ESTA implementation, the agency has received more than 350 ESTA complaints. According to the DCA, professional service firms have been the subject of the most complaints (35 percent of the total), with retail industry employers the subject of 18 percent of the total. Most complaints have stemmed from an employer’s alleged failure to provide proper notice of ESTA to new and existing employees. Although the DCA had not levied a single fine against an employer as of late October 2014, it has issued warnings of “imminent fines” to at least five companies, and NYC businesses should expect the complaints to continue, and actual fines to be issued, in the coming year.
The Pregnancy Accommodation Amendment: Several months before ESTA’s January 2014 implementation, an amendment to the already-expansive NYCHRL took effect. It requires that NYC employers provide reasonable accommodations for an employee’s pregnancy, childbirth, or related medical condition. Such accommodations may include, among other things, bathroom breaks, leaves of absence for childbirth-related disabilities, breaks to facilitate increased water intake, periodic rest for those who stand for long periods, and assistance with manual labor. NYC employers also must distribute, to all new hires upon commencement of employment, written notice of the right to be free from discrimination on the basis of pregnancy, childbirth, or a related medical condition.
The advent of pregnancy accommodation requirements in NYC appears to be part of a larger, national movement to expand the rights of pregnant workers. In July 2014, for example, the Equal Employment Opportunity Commission issued guidance suggesting that the federal Pregnancy Discrimination Act requires accommodations for pregnant employees in certain circumstances. And the U.S. Supreme Court recently heard oral argument in a case presenting a similar issue. Given the high-profile support for pregnant workers’ rights on the national stage, NYC officials can be expected to vigorously enforce the NYCHRL pregnancy accommodation amendment in the coming months.
What Does this Mean for My Company?
New York employers can and indeed should expect a bevy of changes over the next year. From the minimum wage increase to expanded protections for pregnant employees to the use of unpaid labor, the New York employment law landscape remains in flux and is as dynamic as ever. Employers should therefore consult with experienced counsel immediately to discuss these issues and prepare a cogent plan of action to face them head-on.
Be sure that this is a New Year’s resolution that you actually keep!