Employee Discipline: New York
Federal law and guidance on this subject should be reviewed together with this section.
Author: Christine Zebrowski, Overbrook Law LLC
- New York nondiscrimination laws tend to be much broader than federal antidiscrimination requirements. See New York Human Rights Laws.
- New York prohibits retaliation against employees for a number of protected activities, including disclosing or threatening to disclose to a supervisor or public body certain violations of law that create a substantial danger to the public health or safety. See Protection from Retaliation; New York State Protections.
- Public employees also enjoy whistleblower protections under New York civil service law. See Protection from Retaliation; New York State Protections.
- New York State has enacted a False Claims Act. See Protection from Retaliation; False Claims Acts.
- An employer may not discharge or discriminate against an employee for displaying an American flag on his or her person or workstation. See No Discrimination for Displaying an American Flag.
- New York employers may limit, to an extent, workplace discussions of wages. See Workplace Discussions of Wages.
- Employers may not administer, request or permit any employee to take a lie detector test or other psychological stress evaluator examination. See Lie Detector Tests.
- New York employers may test employees for drug and alcohol use. See Testing Employees for Alcohol and Drug Use.
- New York has enacted the "Compassionate Care Act," which legalizes medical marijuana. See Medical Marijuana.
- Employers may not discharge or otherwise discriminate against employees for engaging in lawful activities outside of work without the use of employer equipment or other property, except in a few limited circumstances. See Off-Duty Conduct.
- New York law provides for certain recordkeeping requirements that may affect disciplinary matters. See Recordkeeping Requirements.
- New York recognizes the claim of false imprisonment as one for personal injury. See False Imprisonment.
- Under New York law, with limited exceptions, employers may not discriminate on the basis of a prior criminal conviction. See Use of Criminal Convictions as a Basis for Discipline.
- Private employers are not restricted in the same way as government employers when conducting workplace searches. See Employee Privacy, Searches and Surveillance.
- New York is a one-party consent state. See Wiretapping and Recording of Phone Calls.
- New York has no statute regulating noncompete agreements. See Protection of Intellectual Property.
- New York employees owe their employers a duty of loyalty during the period of their employment. See Protection of Intellectual Property; Duty of Loyalty.
- New York trade secrets law protects against the misappropriation of trade secrets by third parties, including current and former employees and competitors. See Protection of Intellectual Property; Trade Secrets.
- Localities including New York City and Suffolk County have laws pertaining to employee discipline. See Local Requirements.
New York Human Rights Laws
New York nondiscrimination laws tend to be much broader than federal antidiscrimination requirements. Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to employee discipline, so do the nondiscrimination requirements of New York law. See also EEO - Discrimination: New York.
The New York State Human Rights Law (NYSHRL) applies to employers with four or more employees. NY CLS Exec §§ 290 - 301 . However, the New York Women's Equality Act extends to all employees the protections from sexual harassment contained in the NYSHRL. +2015 Bill Text NY S.B. 2.
The NYSHRL includes the following protected classes:
- National origin, which includes ancestry;
- Age, 18 or older;
- Marital status;
- Familial status. +2015 Bill Text NY S.B. 4;
- Domestic violence victim status;
- Sexual orientation;
- Gender identity or expression. See +2019 Bill Text NY S.B. 1047, amending Subdivisions 1 and 2 of Section 291 of the Executive Law, as amended by Chapter 196 of the Laws of 2010;
- Predisposing genetic characteristics;
- Sex, including pregnancy;
- Disability, including AIDS;
- Interns (i.e., a person who performs work for the purpose of training); and
- Military status.
The Women's Equality Act requires an employer to perform a reasonable accommodation analysis for pregnant employees. +2015 Bill Text NY S.B. 8.
The term gender identity or expression means a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender. +2019 Bill Text NY S.B. 1047, adding Subdivision 35 to Section 292 of the Executive Law; see EEO - Discrimination: New York. (Regulations had been issued addressing gender identity discrimination protections at the state level prior to the 2019 NYSHRL amendments.)
The NYSHRL also prohibits retaliation against employees who engage in any protected action under the law, including:
- Filing a complaint;
- Testifying; or
- Assisting in a proceeding under the Human Rights Law.
New York City has its own human rights law, which provides additional protections to employees. See New York City Human Rights Law.
Protection from Retaliation
New York law includes a number of statutory protections for employees who engage in protected activities, such as filing a workers' compensation claim or engaging in whistleblowing.
Employers should take care when disciplining or firing employees who have engaged in protected activities. Employers must ensure that the employment decision is:
- Supported by legitimate documentation; and
- Consistent with the treatment of other similarly situated employees.
Employers should take these steps in order to avoid retaliation or the appearance of retaliation relating to the employee's protected activity.
New York State Protections
Health and safety concerns. New York prohibits retaliation against employees who disclose or threaten to disclose to a supervisor or public body certain violations of law that create a substantial danger to the public health or safety. +NY CLS Labor § 740; +NY CLS Labor § 741.
Protected activity includes testifying or participating in an agency investigation and refusing to participate in such activity. New York law also protects employees in the health care industry against retaliation for protected conduct related to patient care. +NY CLS Labor § 741.
Workers' compensation claims. New York law prohibits employers from discharging or in any way discriminating against an employee because he or she:
- Has claimed or attempted to claim compensation from the employer; or
- Has testified or is about to testify in a workers' compensation proceeding and no other valid reason is shown to exist for the employer's action.
Paid family leave benefits law. In 2016, New York passed a paid family leave benefits law. +2016 N.Y. ALS 54. Covered employees are eligible for paid family leave beginning on January 1, 2018. The law extends retaliation protections available regarding workers' compensation situations to paid family leave benefits. +NY CLS Work Comp § 120.
Public employees. Public employees enjoy whistleblower protections under New York civil service law. See +NY CLS Civ S § 75-b.
Nonprofit organizations. The Nonprofit Revitalization Act of 2013 requires that any nonprofit that has 20 or more employees and over $1,000,000 in revenue must adopt a whistleblower policy to protect from retaliation those people who report suspected improper conduct. +NY CLS N-PCL § 715-b.
False Claims Acts
The New York False Claims Act, like its federal counterpart, allows whistleblowers to file claims, known as qui tam actions, on behalf of state and local governments. NY CLS St Fin §§ 187 - 194 ; See also 31 USCS §§ 3729 - 3733 . The state law has a broad scope of coverage, including tax fraud, and allows for reverse false claims, or claims where an entity fails to pay the government. The state law provides whistleblower protections for claimants. +NY CLS St Fin § 191.
New York City has a similar ordinance. See New York City False Claims Act.
No Discrimination for Displaying an American Flag
An employer may not discharge or discriminate against an employee for displaying an American flag on his or her person or workstation, provided that the display does not substantially or materially interfere with the employee's job duties. +NY CLS Labor § 215-C.
Workplace Discussions of Wages
New York's Women's Equality Act prohibits an employer from disciplining or terminating an employee based on his or her discussion of current wages or salaries. +2015 Bill Text NY S.B. 1. However, an employer may implement a written policy, which is provided to all employees, that establishes reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussion of or disclosure of wages.
In addition, an employer may prohibit an employee from discussing or disclosing another employee's wages without his or her prior permission. An employer may also prohibit an employee who has access to other employees' wage information from disclosing the wages to individuals who do not otherwise have access to such information.
An employee who has access to others' wage information may disclose the information:
- In response to a complaint or charge;
- In furtherance of an investigation, proceeding, hearing or legal action; or
- In conjunction with an internal investigation.
Finally, an employer found to have willfully violated the law may be subject to an increased amount of damages (i.e., treble damages).
Lie Detector Tests
Employers may not administer, request or permit any employee to take a lie detector test or other psychological stress evaluator examination. +NY CLS Labor § 735. Employers may not discharge or discipline employees for failing to submit to such an exam.
Testing Employees for Alcohol and Drug Use
New York employers may test employees for drug and alcohol use. However, employers should note that New York courts have recognized the claim of negligent drug testing. See Landon v. Kroll Lab. Specialists, Inc., +2013 N.Y. LEXIS 2752 (N.Y. Oct. 10, 2013).
New York has enacted the "Compassionate Care Act," which legalizes the use of medical marijuana in the treatment of certain conditions. The New York Department of Health operates the program.
The law's provisions are quite narrow and do not include broad protections. For example, under the new law, only certain individuals with a legally defined "serious condition" will be able to use marijuana for treatment. "Serious conditions" include cancer, HIV/AIDS, Parkinson's disease, epilepsy or Huntington's disease, among others. The list may be expanded by the Commissioner of Health to include Alzheimer's, muscular dystrophy, dystonia, post-traumatic stress disorder and rheumatoid arthritis (or other ailments) in the coming months.
The Act protects certified patients from discrimination (i.e., disciplinary action) for exercising their rights to use medical marijuana. In addition, an employer may have to accommodate employees using medical marijuana.
However, an employer may continue to enforce policies prohibiting working while impaired by a controlled substance. In addition, even certified patients may not:
- Smoke marijuana; or
- Take the medically-prescribed form of the drug in a "public place."
Most of the above provisions appear in Title 5A in Article 33 of the Public Health Law entitled "Medical Use of Marihuana."
Employers may not discharge or otherwise discriminate against employees for engaging in lawful activities outside of work without the use of employer equipment or other property, except in a few limited circumstances. +NY CLS Labor § 201-d. Lawful activities include:
- Political activities, including:
- Running for office;
- Campaigning for a candidate for public office; or
- Participating in fundraising activities for a candidate, political party or political advocacy group.
- Recreational activities, including any lawful, leisure-time activity, including:
- Reading; or
- Viewing of television or movies.
- Union activities; and
- The legal use of consumable products.
An employer may restrict off-duty activities if they create a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.
In addition, an employer may take action based on the belief that:
- Action was required by law, regulation, ordinance or other governmental mandate;
- Actions were permissible under an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement; or
- The employee's actions were illegal or constitute habitually poor performance, incompetency or misconduct.
Violations of this law can be enforced by the state attorney general, who may seek an injunction and penalties of $300 for the first violation and $500 for each subsequent violation. An employee may also file a civil action for damages and other remedies.
Although off-duty tobacco use, as a consumable product, is included in the lawful activities listed in New York's off-duty conduct statute, the state's smoking ban places workplace restrictions on smoking. +NY CLS Pub Health § 1399-o. The smoking ban applies to indoor workplaces and to the following outdoor areas:
- On ticketing, boarding or platform areas operated by the metropolitan transportation authority (as is the case under current law);
- On hospital or residential health care facility grounds or within 15 feet of an entrance or exit of any hospital or residential health care facility building or grounds; and
- Within 100 feet of the entrances, exits or outdoor areas of any public or private elementary or secondary schools.
The smoking ban also covers postsecondary educational institutions (public and private colleges, universities), public transportation and food-service establishments.
New York has amended the public health law to prohibit vaping wherever smoking is prohibited in public areas. 2017 Bill Text NY S.B. 2543A.
The amendments define vaping as the use of an electronic cigarette (or e-cigarette).
A number of municipalities also restrict the use of e-cigarettes in addition to smoking other products. See Local Requirements.
New York law provides for certain recordkeeping requirements that may affect disciplinary matters.
Employers are required to maintain for six years, for each week worked by its employees, the following records:
- Rate of pay and basis thereof, whether paid by hour, shift, day, week, salary or piece;
- Gross wages, deductions, allowances and net wages;
- For nonexempt employees,
- Regular hourly rate;
- Overtime rate;
- Number of regular hours worked;
- Number of overtime hours worked; and
- For all employees paid a piece rate, the payroll records shall include the applicable piece rate or rates of pay and number of pieces completed at each piece rate.
The New York Workers' Compensation Law requires employers to keep the following records for a period of four years:
- Number of employees;
- Classification of employees;
- Information regarding employee accidents; and
- Wages paid.
New York recognizes the claim of false imprisonment as one for personal injury. +NY CLS Gen Const § 37-a. In the case of a disciplinary meeting or action, an employer may be held liable for false imprisonment if the employer or his agent knowingly restrains an employee so as to interfere substantially with the employee's ability to leave the room.
The New York State Department of Labor requires employers to post several different kinds of notices relating to:
- Use of criminal records for employment purposes;
- Minimum wage; and
- Other topics. See Employee Communications: New York.
Use of Criminal Convictions as a Basis for Discipline
Under New York law, employers may not discriminate on the basis of a prior criminal conviction, unless:
- There is a direct relationship between the offense and the job; or
- If continuing the employment would involve an unreasonable risk to property, safety or welfare of individuals or the general public. +NY CLS Correc § 752; +NY CLS Exec § 296 (15).
Under the New York State Human Rights Law, employers may not ask about or take an adverse employment action based upon any prior arrest or criminal accusation that was followed by a termination of that criminal action in favor of the employee. +NY CLS Exec § 296 (16).
In addition, employers are required to consider several factors concerning a previous criminal conviction before taking an action to fire an employee based on his or her prior criminal record. These factors include:
- The specific duties and responsibilities of the job;
- Whether the conviction will have any bearing on the individual's ability to do the job;
- The time since the offense;
- The individual's age;
- The seriousness of the offense; and
- Any information relating to the individual's rehabilitation and good conduct.
Employers that take these factors into consideration and make a good faith determination that the factors weigh in favor of hiring or retaining the individual have greater protection against a negligent hiring or retention claim. In this case, there is a rebuttable presumption in favor of excluding the prior arrest or conviction from evidence, meaning that the claimant may be prohibited from relying on the conviction when asserting his or her claim. +NY CLS Exec § 296 (15).
Employee Privacy, Searches and Surveillance
In public sector, or government, employment, employer searches and surveillance are subject to constitutional standards. In this context, both the United States and New York State constitutions protect individuals from unreasonable searches by the government, even when the government is acting as an employer.
Government employers must balance the employees' expectations of privacy against the government's need for:
- Control; and
- The efficient operation of the workplace. See O'Connor v. Ortega, +480 U.S. 709 (1987).
As a general rule, a public employer should apply a standard of reasonableness, considering all of the circumstances. Government employers should seek legal guidance when deciding whether, when and how to conduct a workplace search. See Employee Privacy: New York.
There is no statute in New York governing workplace searches by private employers. In addition, New York law does not provide for a cause of action for invasion of privacy. See Freihofer v. Hearst Corp., +65 N.Y.2d 135, 140 (1985); Hurwitz v. United States, +884 F.2d 684, 685 (2d Cir. 1989). Accordingly, private employers are not restricted in the same way as government employers when conducting workplace searches.
However, private employers should still exercise caution when deciding whether, when and how to search employees and employee property at work. In order to help minimize and avoid employee claims related to workplace searches, private employers should have a clear and well-publicized policy stating that employees have no expectation of privacy in any areas or property in the workplace. See Employee Privacy: New York.
New York law prohibits the installation of viewing devices in restrooms. +NY CLS Penal § 250.45.
Wiretapping and Recording of Phone Calls
New York is a one-party consent state, which means it is a crime in New York to record or eavesdrop on a telephone conversation without the consent of at least one party to the conversation. +NY CLS Penal § 250.00 (1).
Protection of Intellectual Property
Covenants Not to Compete
New York has no statute regulating noncompete agreements. There are industry-specific regulations relating to noncompetes for lawyers, brokers and employees in the broadcast industry. See +22 NYCRR § 1200.0, Rule 5.6(a); Financial Industry Regulatory Authority (FINRA) Rule 2140; FINRA Rule 11870; +NY CLS Labor § 202-k. These rules essentially invalidate any noncompetition agreement in these industries except under very limited circumstances.
In general, New York courts disfavor covenants not to compete as unreasonable restraints on trade. However, most courts will enforce a noncompete if the terms are reasonable. New York courts apply a three-prong test to determine reasonableness. A violation of any prong renders the covenant invalid.
A restraint is reasonable only if it:
- Is no greater than is required for the protection of the legitimate interest of the employer;
- Does not impose undue hardship on the employee; and
- Is not harmful to the public.
Courts will also consider the reasonableness of the term and geographic scope of the agreement. In New York, judges may cut or modify unreasonable provisions, leaving the remaining provisions enforceable as written, if there is evidence the employer was:
- Acting in good faith to protect legitimate business interests; and
- Not overreaching.
See BDO Seidman v. Hirshberg, +93 N.Y.2d 382, 394 (1999).
In New York, continued employment is sufficient consideration, i.e., the basis on which to support a contract, to support a restrictive covenant such as a covenant not to compete. See Zellner v. Stephen D. Conrad, M.D., P.C., +183 A.D.2d 250 (N.Y.App.Div. 2nd Dept. 1992). However, a court may decline to enforce a covenant not to compete if the record shows that the employer breached the agreement's terms first (e.g., by demoting an employee). See Fewer v. GFI Grp., Inc. et al., +124 A.D.3d 457 (N.Y.App.Div. 1st Dept. Jan. 15, 2015).
When evaluating a nonsolicit agreement, New York courts will consider the extent to which the agreement is reasonable and necessary to protect the employer's legitimate business interests. Like noncompetes, such agreements may be modified by judges to make them reasonable, based on the particular circumstances of each case.
For example, in the BDO Seidman case, the court declined to enforce a nonsolicit agreement to the extent it prohibited the employee from soliciting BDO clients with whom he had not developed a relationship through his employment with BDO. It also declined to enforce the nonsolicit with respect to personal clients who came to BDO solely to work with the employee as a result of the employee's own recruitment efforts and which were not acquired through the expenditure of BDO's resources.
The BDO Seidman court did enforce the nonsolicit agreement to the extent it prohibited solicitation of clients the employee developed relationships with during his employment with BDO and which were not considered personal clients of the employee. See BDO Seidman v. Hirshberg, +93 N.Y.2d 382 (1999).
Duty of Loyalty
New York employees owe their employers a duty of loyalty during the period of their employment. This duty of loyalty includes a duty not to:
- Compete with the employer;
- Divert business opportunities to himself or herself or others to the financial detriment of the employer;
- Accept improper kickbacks; or
- Earn secret profits at the expense of the employer.
An employee can be liable for damages to the employer if he or she breaches the employee duty of loyalty. See, e.g., Veritas Capital Management L.L.C. v. Campbell, 2008 NY Slip Op. 33201U.
New York has not adopted the Uniform Trade Secrets Act and it does not have a statute governing trade secrets. Instead, the law of trade secrets in New York is based on the common law, or court-made law. New York trade secrets law protects against the misappropriation of trade secrets by third parties, including current and former employees and competitors.
Under New York common law, a trade secret is generally defined as any formula, pattern, device or compilation of information which is used in one's business, and which gives the owner an opportunity to obtain an advantage over competitors who do not know or use it. See Ashland Management v. Janien, +82 N.Y.2d 395 (1993). To be protected, a trade secret must actually be secret.
If the information at issue is public knowledge, or could be acquired easily and duplicated, it is not a trade secret. See Ashland Management v. Janien, +82 N.Y.2d 395 (1993). For example, customer lists will not be protected as trade secrets:
- If the names and addresses of customers are readily ascertainable. See Leo Silfen, Inc. v. Cream, +29 N.Y.2d 387 (1972); or
- Where client information is scattered throughout the office in unlocked files. See Fredric M. Reed & Co. v. Irvine Realty Group, Inc., +281 A.D.2d 352 (N.Y.App. Div. 1st Dept. 2001).
Information from publicly available sources is not entitled to trade secret protection. See JAD Corp. of Am. v. Lewis, +305 A.D.2d 545 (N.Y.App. Div. 2nd Dept. 2003).
Albany County Electronic Cigarette Ordinance
Albany County bans the use of electronic cigarettes in and within 20 feet of Albany County-owned buildings. See generally Albany County Health Laws and Regulations.
Cattaraugus County Electronic Cigarette Ordinance
Under Local Law No. 16-2011, the County of Cattaraugus, New York prohibits the smoking of electronic cigarettes, herbal cigarettes and "like products" in public places where smoking is already banned.
New York City Electronic Cigarette Ordinance
New York City bans the use of e-cigarettes in all public places, workplaces and wherever cigarette smoking is banned. NYC Administrative Code 17-503; NYC Administrative Code 17-504.
New York City False Claims Act
A New York City ordinance, the False Claims Act, allows whistleblowers to file claims on behalf of the government for fraud and waste, similar to its federal and state counterparts. NYC Administrative Code 7-801 - 810.
New York City Human Rights Law
New York City has its own human rights law, which provides additional protections to employees.See NYC Administrative Code 8-101 - 131. In New York City, interns are protected from discrimination under municipal and state law. +NYC Administrative Code 8-102; see EEO - Discrimination: New York.
New York City Paid Sick Leave
New York City employers have additional anti-retaliation requirements under the city's Earned Safe and Sick Time Act (ESSTA), which provides certain employees with up to five paid sick days every calendar year. See Other Leaves: New York. An employer must not retaliate against an employee because that employee has exercised rights guaranteed by the Act. Retaliation may be any act that is reasonably likely to deter an employee from exercising rights guaranteed under the law. This includes an act that is reasonably likely to deter the employee from exercising protected rights (e.g., physically threatening an employee outside the workplace). Adverse actions may include:
- Reduction of hours;
- Informing another employer that an employee has engaged in protected activities; and
- Discrimination, including actions related to perceived immigration status or work authorization.
Under clarifications to Title 6, Rule 7-17, the Department of Consumer Affairs may establish a causal connection between an employee's exercise of rights guaranteed under the Earned Sick Time Act and an employer's adverse employment action either:
- Indirectly, e.g., showing that the protected activity was followed closely by the adverse employment action; or
- Directly, showing an employer's retaliatory intent directed toward an employee.
The Department may establish retaliation by showing that a protected activity was a motivating factor for an adverse employment action, even when other factors also motivated the adverse employment action.
For each instance of unlawful retaliation, the employee may recover full compensation, $500, and other relief, as appropriate. If the retaliation includes unlawful termination, the employee may recover:
- Full compensation;
- Up to $2,500; and
- Equitable relief, including reinstatement, as appropriate.
However, an employer may discipline an employee for abuse of sick time under the ESSTA and implementing rules. An employer may take disciplinary action, up to and including termination, against an employee who uses sick time provided under the ESSTA for unlawful or unprotected purposes. These may include a pattern of:
- Using unscheduled sick time on or adjacent to weekends, regularly scheduled days off, holidays, vacation or pay day;
- Taking scheduled sick time on days when other leave has been denied; and
- Taking sick time on days when the employee is scheduled to work a shift or perform duties perceived as undesirable.
The ESSTA allows employees to take leave when the employee or a family member has been the victim of a family offense matter, a sexual offense, stalking or human trafficking.
With respect to employee attendance, for absences of more than three consecutive workdays, an employer may require reasonable documentation that safe time was used for an authorized reason. Reasonable documentation includes:
- Documentation signed by an employee, agent or volunteer of a victim services organization; an attorney; a member of the clergy; or a medical or other professional service provider from whom the employee or a family member has sought assistance in addressing family offense matters, sex offenses, stalking or human trafficking and their effects;
- A police or court record; or
- A notarized letter from the employee explaining the need for such time.
An employer may not require that the documentation specify the details of the family offense matter, sexual offense, stalking or human trafficking.
New York City Scheduling Law
The New York City Fair Work Practices Ordinances (also known as the New York City Fair Workweek ordinances) establish several scheduling requirements. See Managing Employees in Special Situations: Federal. The ordinances have retaliation protections.
Specifically, employers are prohibited from retaliating against employees for exercising or attempting to exercise any rights under the Fair Work Practices Ordinances. +NYC Administrative Code 20-1204. The act of retaliating includes:
- Suspending; or
Suffolk County Electronic Cigarette Ordinance
Section 754-2 of the Suffolk County Municipal Code bans the use of e-cigarettes in public buildings and spaces, including enclosed workplaces.
Westchester County Paid Sick Leave
Westchester County has passed its Earned Sick Leave Law (ESLL). LL-2018-6, adding Chapter 585 to the Westchester County, New York Code of Ordinances. The law, effective April 10, 2019, covers employees of an employer with five or more employees for paid leave; smaller covered employers must provide unpaid leave. In addition, certain domestic workers are covered by the law's protections. See Other Leaves: New York.
The ESLL has retaliation protections. Westchester County, New York Code of Ordinances, Section 585.08. Specifically, an employer may not:
- Interfere with, restrain or deny the exercise or the attempt to exercise of the right to use earned sick leave;
- Include used earned sick time as an absence that may lead to or result in:
- Demotion; or
- Take retaliatory personnel action or discriminate against an employee because the employee has:
- Requested to use or has used earned sick time;
- Filed a complaint regarding an alleged violation of the ESLL; or
- Informed another employee of his or her rights under the ESLL.
The law imposes a rebuttable presumption (i.e. an assumption unless contested) of unlawful retaliatory personnel action whenever an employer takes adverse action against an employee within 90 days of the filing of a complaint under the ESLL.
In addition, an employer may not deny an employee earned sick time to an employee based on noncompliance with a written policy unless the employee has provided a copy of its written policy to the employee. Westchester County, New York Code of Ordinances, Section 585.07(3). Finally, an employer may not require, as a condition of an employee's use of earned sick time, that the employee find another employee to work during the time of the employee's absence. Westchester County, New York Code of Ordinances, Section 585.07(4).
Westchester County Safe Time Leave Law
Westchester County's Safe Time Leave Law (STLL), effective October 30, 2019, provides paid leave to employees who are victims of domestic violence or human trafficking. See Other Leaves: New York. The law contains retaliation protections.
Specifically, the STLL prohibits an employer from:
- Interfering with, restraining or denying the exercise of, or the attempt to exercise, the right to use safe time leave;
- Including safe time leave as an absence that may lead to or result in discipline, termination, demotion or suspension; and
- Taking retaliatory personnel action or discriminating against an employee because the employee has:
- Used or requested to use safe leave;
- Filed a complaint regarding an employer's alleged STLL violation;
- Informed another employee of his or her STLL rights; or
- Participated or assisted in a STLL investigation, proceeding or hearing.
A retaliatory personnel action means the denial of any STLL right or:
- Any threat;
- Reduction of hours;
- Reporting or threatening to report the employee's or a family member's suspected immigration or citizenship status to a federal, state or local agency; or
- Any other adverse action against an employee for exercising any STLL right, including sanctions against a recipient of public benefits.
The law contains a rebuttable presumption (i.e. an assumption unless contested) that an employer unlawfully retaliated if it takes an adverse action against an employee within 90 days of the employee filing a complaint regarding an alleged STLL violation.
Westchester County, New York Code of Ordinances Sec. 586.03; Westchester County, New York Code of Ordinances Sec. 586.06.
An employer may not require, as a condition of the use of safe leave, that an employee find another employee to work during the leave time. Westchester County, New York Code of Ordinances Sec. 586.05.
No Discrimination Against Immigrant Employees
A New York employer may not threaten, penalize, discriminate or retaliate against an immigrant employee by:
- Threatening to contact or contacting US immigration authorities; or
- Otherwise reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member (as defined in +NY CLS Soc Serv § 459-a) to a federal, state or local agency.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.