New York has expanded retaliation protections under New York Labor Law 215.
Employer retaliation now includes employees who take absences that are legally protected under federal, local, or state law.
Employers should review this law, especially regarding any leave policies or so-called “no-fault” attendance policies, to ensure compliance.
Governor Kathy Hochul was elected full-time less than two weeks ago and continues to push legislation affecting New York businesses. Invoice A8092B/S1958 it passed the New York State Legislature on May 31, 2022, but was not called to the governor’s office until November 21, 2022. Governor Hochul signed the bill into law the same day.
The law, A8092Bamends Section 215 of New York Labor Law which prohibits private sector employers from retaliating against employees who report alleged labor law violations. In particular, section 215 is amended in two places. First, it adds to the definition of a protected activity under the statute to include an employee using any absence that is legally protected under federal, local, or state law. In particular, the amendment does not provide a definition of what constitutes “legally protected absence under federal, local, or state law.” Several paid leave laws may be involved, including New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, as well as various unpaid leave laws including the Family and Medical Federal Leave Act and more specific New York leaves (Blood Donor Leave, Bone Marrow Donor Leave, Military Spouse Leave, Witness and Crime Victim Leave, Voluntary Emergency Response Leave, Jury Leave , voting leave). Broadly worded language in the law can also be interpreted to include workers compensation, disability, and unpaid leave as a reasonable accommodation under the Americans with Disabilities Act and the New York Executive Law.
Section 215 is also amended to broaden the definition of “threatening, penalizing or in any other way discriminating against or retaliating against any employee” to include “the assessment of any demerit, event, any other point or deduction from a time bank assigned, which subjects or may subject an employee to disciplinary action, which may include but is not limited to not receiving a promotion or loss of compensation.
Section 215 allows for both enforcement by the Labor Commissioner and private causes of action by employees, with wide and serious consequences for non-compliance ranging from civil penalties, back pay, liquidated damages, reinstatement, prepayment and reimbursement of costs and legal expenses.
The law goes into effect 90 days after Governor Hochul signs it into law.
This isn’t the first time in recent years that Section 215 of the New York Labor Law has been changed. In 2019, Section 215 was amended to state that “threatening, penalizing, or otherwise discriminating against or retaliating against any employee includes threatening to contact or contact U.S. immigration authorities or otherwise reporting or threatening to report the suspected citizenship or immigration status of an employee, or the suspected citizenship or immigration status of an employee’s family or family member… to a federal, state or local agency.”
As the scope of employee protections in New York continues to expand, employers are advised to review this law along with any leave policy with an experienced counsel to ensure compliance. In particular, all private sector enterprises with so-called “no-fault” participation policies should certainly review those policies to ensure they are enforced within the bounds of this law.