This blog was co-authored by Amy Frieder and Surabhi Dhar
On November 21, 2022, New York Governor Kathy Hochul signed S1958A/A8092B into law, which bars employers from punishing or disciplining workers for taking lawful absences from work (often referred to as “no-fault” attendance policies). The law amends Section 215 of the New York Labor Law and went into effect on February 19, 2023.
Under the new law, employers cannot discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee for using any legally protected absence pursuant to federal, local, or state law. This may include assessing any demerit, occurrence, or any other “point”, or deducting from an allotted bank of time that could be used to subject an employee to disciplinary action, which includes (but is not limited to) denial of a promotion, or loss of pay. Discrimination or retaliation also includes threatening to contact, contacting, or reporting an employee or their family members’ suspected citizenship or immigration status.
Purpose of the Law
No-fault attendance policies inhibit employees from taking legally protected leave under the Family and Medical Leave Act, the Americans with Disabilities Act, and state and local paid leave laws. New York law provides more employee leave protections than federal law does. Such protective laws include New York State Paid Family Leave, New York State Paid Sick Leave, and New York City Paid Safe and Sick Leave. The new state law clarifies that New York workers are able to take state-protected leave without facing direct or insidious discipline. One of the added protections of this law is that, unlike the Family and Medical Leave Act, employees don’t need to have been working for their employer for a minimum period before availing its protection.
Studies point to the prominence of no-fault attendance policies. A 2010 survey of over 1,000 human resources professionals found that 40 percent of their employers relied on some form of “absence control” such as a point system, and a 2006 study of union arbitration proceedings found many disputes regarding disciplinary actions resulting from absences caused by personal or family needs. More recently, no-fault absence policies pushed thousands of rail workers to the brink of a strike in 2022. These policies can be a catalyst for discrimination claims, since they especially impact women, who are disproportionately caregivers and need leave during their pregnancy. The new law in New York, therefore, presents an opportunity to prevent such discrimination in the workplace.
What Can You Do If Your Employer Violates Section 215 Of The New York Labor Law?
This amendment to the New York Labor Law ensures that employers do not penalize workers for exercising their legal rights to take off from work to care for themselves and their loved ones. If employers discipline or retaliate against employees for lawful absences, affected individuals can enforce their rights by contacting the Labor Commissioner or suing in a private cause of action. Remedies for violation of the amended Section 215 include payment of liquidated damages up to $20,000, reasonable attorneys’ fees, reinstatement, back pay, front pay and costs.
If you believe you have been disciplined for exercising your legal rights, contact an experienced employment attorney at Sanford Heisler Sharp, which has offices in New York City, as well as San Francisco, Palo Alto, Atlanta, Baltimore, Nashville, San Diego, and Washington D.C.