NYC Department of consumer and worker protection announces $25K settlement in first paid safe leave case

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NYC Paid Safe and Sick Leave Law Allows Employees to Use Their Paid Leave for Any Act or Threat of Domestic Violence, Unwanted Sexual Contact, Stalking, or Human Trafficking; Additional Amendments to the Law Go into Effect September 30th

NEW YORK, NY – Department of Consumer and Worker Protection (DCWP) Commissioner Lorelei Salas today announced a settlement agreement with Los Olivos, a food distributor based in Farmingdale, NY, to resolve violations of the NYC Paid Safe and Sick Leave Law. The settlement requires the company to pay $22,000 to an NYC-based worker who was wrongfully terminated for using safe leave and $3,000 to six other employees unlawfully denied access to paid safe and sick leave. The company, after demanding confidential information about her history as a victim of domestic violence when she used two safe leave days, harassed and retaliated against her and ultimately fired her. This is DCWP’s first paid safe leave case since the law went into effect in 2018 and comes in advance of Domestic Violence Awareness Month, which begins tomorrow.

“To deny safe leave to survivors of domestic violence, sexual assault, and human trafficking is not only illegal, it’s just plain shameful,” said DCWP Commissioner Lorelei Salas. “With the increase of domestic violence cases during the pandemic, it is now more crucial than ever that New Yorkers know their rights. I am proud that our City provides safe leave to protect survivors of domestic violence so they can access resources and address safety needs without having to sacrifice their paycheck. We hope this sends a message to employers across all industries: no one is above the law—and we will continue fighting for all workers in New York City.”

DCWP’s investigation into the food distributor, which provides food products to grocery stores in New York City, found that they violated the NYC Paid Safe and Sick Leave Law in several ways. Los Olivos required the employee to provide documentation of her use of safe leave, refused to give her the leave, and harassed her for private and confidential information, such as details of her ex-husband’s attacks and her examination by a doctor. The company also retaliated against her for exercising her right to safe leave by suspending her and ultimately firing her. The company also violated the Law by requiring its NYC-based employees to work for six months before using safe/sick leave, prohibiting the use of leave on Saturdays, imposing annual deadlines on the use of leave, and failing to carry over unused leave to the following year.

DCWP first filed a case against Los Olivos at the Office of Administrative Trials and Hearings (OATH) in 2019 prior to reaching this settlement agreement. The settlement requires Los Olivos to:

• Pay $22,000 in restitution to the employee who was denied safe leave;
• Pay $500 in restitution to each of the six other employees identified in the case;
• Implement a safe and sick leave policy that is compliant with the Law and corrects the violations in the company’s prior policy;
• Post and distribute the Notice of Employee Rights and obtain a written, dated acknowledgement of receipt from each employee; and
• Train managers and supervisors on the NYC Paid Safe and Sick Leave Law; and
• Appoint a compliance officer to monitor and report on compliance with the Law.

“The Department of Consumer and Worker Protection’s efforts in securing this settlement is a victory for all survivors,” said Cecile Noel, Commissioner of the Mayor’s Office to End Domestic and Gender-Based Violence. “Survivors need us now more than ever in these extraordinary times. COVID-19 puts into sharp focus the vulnerabilities that many people in our city face every day, especially gender-based violence survivors; and it highlights the barriers and challenges that we know keep people from seeking help and finding safety. The City is here for survivors during this crisis and beyond, and ‘safe leave’ ensures survivors have the right to prioritize their safety and wellbeing without fear of penalty or retribution.”

“Survivors should never have to choose between their safety and their job. It is critical that victims of sexual assault, domestic violence, and human trafficking are able to take paid leave to secure their safety and get desperately needed help without fear of jeopardizing their livelihood. I applaud DCWP for diligently enforcing the City’s Paid Sick and Safe Leave Law and their commitment to being the voice of all working New Yorkers,” said Council Member Andrew Cohen, Chair of the Committee on Consumer Affairs and Business Licensing.

“Our laws are only effective if they are enforced. We applaud DCWP for thoroughly investigating and pursuing a case on behalf of our client, a survivor of domestic violence who was terminated from her employment for exercising her right to safe leave. No survivor should face retaliation for using safe leave, and any employer in violation of the NYC Paid Safe and Sick Leave Law should be held accountable. We at the New York Legal Assistance Group (NYLAG) fiercely and unequivocally stand with survivors and will continue to enforce their rights,” said Beth Goldman, NYLAG President & Attorney-in-Charge. 

“Anyone facing domestic violence, unwanted sexual contact, stalking, or human trafficking should be entitled to protection and support. NYC’s Paid Safe and Sick Leave Law enables employees to take care of themselves when they need it most. The Department of Consumer and Worker Protection’s settlement with Los Olivos shows what is possible when we put employee safety and well-being first,” said Council Member Helen Rosenthal, Chair, Committee on Women & Gender Equity.

“A Better Balance applauds this settlement of the Paid Safe and Sick Law by DCWP,” said Sherry Leiwant, Co-President, A Better Balance. “The facts of this case show that employers too often remain insensitive to the needs of domestic violence victims and ignore the law. The Law entitles them to take time off to get safe and also protects their confidentiality, which is essential to their safety. We are delighted that the Paid Safe and Sick Leave Law, which we helped pass, now includes protection for domestic violence victims, in addition to the protections for workers and their families when sick—and that it is being strongly enforced. Now more than ever these protections are essential for all New Yorkers.”

The NYC Paid Safe and Sick Leave Law, which was an expansion to the Paid Sick Leave Law, allows employees to use their paid leave if they or a family member have been the victim of any act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking in order to plan their next steps and focus on safety without fear of penalty. New York City was the first city in the nation to pass paid safe leave legislation that includes survivors of human trafficking.

This week, Mayor de Blasio signed Intro 2032-2020, which amends the NYC Paid Safe and Sick Leave, into law. The amendments, which will go into effect in two phases, add additional protections for workers and align it with the recently passed NYS Paid Sick Leave Law.

Effective September 30:

• Domestic workers in NYC have the right to 40 hours of paid safe and sick leave like other covered employees;
• There is no longer a 120-day waiting period for employees to use leave;
• Employers must reimburse employees if they have to pay to get required documentation after three consecutive workdays of leave; and
• Employers must list the amount of leave accrued and used and the employees’ total balance of accrued leave on their paystub or on another document that is provided to employees each pay period.

Effective January 1, 2021:

• Employers that have 100 or more employees must provide employees with an additional 16 hours of paid safe and sick leave for a total of 56 hours;
• Employers that have four or fewer employees and a net income of one million dollars or more must provide employees with paid leave instead of unpaid leave;

Currently, employers with five or more employees and employers of domestic workers who work more than 80 hours per calendar year in New York City must provide paid safe and sick leave to employees. Employers with fewer than five employees must provide unpaid safe and sick leave. Safe and sick leave is accrued at a rate of one hour of leave for every 30 hours worked, up to 40 hours per calendar year, and begins on the employee’s first day of employment. For employers who do not front-load safe and sick leave on the first day of a new calendar year, employees must be able to carry over up to 40 hours of unused safe and sick leave from one calendar year to the new calendar year.

If the need to use leave is foreseeable, employers can require up to seven days advance notice to use accrued leave. If the need is unforeseeable, employers may require notice as soon as practicable. Employers can require documentation for more than three consecutive workdays of leave, but it is illegal to require that documentation specify the reason for using it. Employers may not engage in or threaten retaliation against employees, which includes firing and any act that punishes an employee for or is likely to deter an employee from exercising their rights under the Law.

Since the Law went into effect, DCWP has received more than 2,700 complaints about Paid Safe and Sick Leave, closed more than 1,950 investigations, and obtained resolutions requiring more than $12.57 million in combined fines and restitution for more than 36,600 workers.

DCWP’s case was handled by Agency Attorneys Emily Hoffman and Margot Finkel under the supervision of Litigation Director Claudia Henriquez of DCWP’s Office of Labor Policy & Standards, which is led by Deputy Commissioner Benjamin Holt.

Employers and employees can visit nyc.gov/workers or call 311 (212-NEW-YORK outside NYC) for more information, including the required Notice of Employee of Rights, one-page overviews for employers and employees, and the complaint form. DCWP also has a multilingual summary of City labor laws for employers and employees during the pandemic (Update about Workplace Laws During COVID-19), which provides an overview of local, state and federal sick leave laws.