New York employers can’t retaliate against employees for lawful absenteeism | Fox Rothschild LLP

Effective February 19, 2023, New York City employers are prohibited from retaliating against employees who are lawfully absent under federal, state, or local law. Employers are advised to review their furlough policies to ensure compliance before the change – signed by Governor Kathy Hochul on November 21, 2022 – goes into effect.

Protection against retaliation under the Labor Code

Section 215 of the New York Labor Code prohibits employers from taking adverse labor law action against workers who complain about a suspected labor law violation or otherwise assist in a government investigation of such a violation. In particular, employers may not fire, threaten, punish or otherwise discriminate against or retaliate against an employee because the employee:

  • have made a good faith complaint that their employer violated the Labor Code; or
  • Cooperating with an investigation by the New York State Department of Labor (NYDOL) or the New York Attorney General regarding an alleged violation of the labor code.

In 2019, New York amended Section 215 of the Labor Code to state that the phrase “threat, punishment or other discrimination or retaliation” against an employee also includes the threat (or actual reporting) of the citizenship or suspected immigrant status of an employee or family member of an employee to immigration authorities because the employee has made a complaint or otherwise participated in an investigation into an alleged violation of labor law.

No retaliation for lawful absence

The new law, Assembly Bill A8092B, further expands the protections against retaliation under Section 215 of the Labor Code. Effective February 19, 2023, employers may not retaliate against employees who are absent from work for a reason covered by federal, local, or state law. Such leave of absence includes, but is not limited to:

  • Federal Family and Sick Leave Act (FMG)
  • New York State Paid Sick Leave
  • The New York Paid Safe and Sick Leave Act
  • Paid family vacation in upstate New York
  • The various COVID-19 leave laws

The law will also expand the definition of “threatening, punishing, or in any way discriminating or retaliating against any employee” to include the use of an employee’s lawful leave of absence as a basis for disciplinary action, termination, denial of promotion, salary reduction, or otherwise adversely affecting the working conditions of the employee affect workers. In other words, an employer cannot use an employee’s protected absence as a factor in employment decisions. Although there are limited exceptions, such exceptions are usually fact specific and it is recommended that an employer consult an experienced attorney before taking any adverse action against a furloughed employee.

Penalties under the Labor Code

The Labor Code allows enforcement by the NYDOL, or the New York Attorney General, and also allows an employee to bring a private lawsuit against their employer. A fine of up to US$10,000 may be imposed for the first violation. If an employer is found to have previously violated the labor code within the past six years, that fine can be increased up to $20,000. In addition, employees who are terminated from employment may be entitled to a refund of wages and a penalty for any violation.

Given the serious consequences of violating labor laws, we strongly encourage employers to review their vacation policies to ensure these enhanced retaliation protections are being followed. Employers are also cautioned that any employment decision based on an employee’s lawful absence will result in a violation of these new legislative changes.

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