Mayor Zohran Mamdani and the Department of Consumer and Worker Protection will roll out Friday a new compliance check to make sure that employers are following the city’s revamped paid time off law.
Going forward, if an employer’s payroll records show that fewer than 50% of employees have used any paid time off in the past year, the agency will flag that business as possibly engaging in “systemic” violations of the law, said DCWP policy director Elizabeth Wagoner. The exact benchmark varies by industry and company size, she added.
The 50% benchmark is based on the agency’s analysis of national data from the U.S. Centers for Disease Control and Prevention, which found that half of all private sector employees with paid sick leave miss at least one work day per year due to their own illness, injury or disability.
The agency will also continue to investigate possible violations of the law based on complaints from workers, she said.
The new payroll tracking is part of the city’s renewed push to establish clearer compliance rules for employers under its paid time off law, one that includes a new tool for employers to ensure they are following the law.
Since 2014, most employees in New York have been entitled to time off for illness, injury or other urgent personal business. Approximately 3 million New Yorkers are covered under the newly rechristened Protected Time Off Law, which grants private-sector workers a minimum of 32 hours of unpaid time off per year, in addition to 40 hours minimum of paid time off annually.
“What we want to do here is provide clarity for everyone, for the judges who are hearing our cases, for employers who are running a business,” said Wagoner. “If you have sick time usage rates below this number, there’s a compliance problem, and you need to fix it.”
Often, the agency wrote in its report, employers in New York will say they have low time-off usage rates simply because workers don’t want to use the benefit. But the agency found that some workers face illegal barriers even in places that do offer the benefit.
Workers may not receive sufficient notice of their rights, or have managers who discourage use of their time off, or may be told that they are responsible for identifying someone who can take over their shifts — all prohibited by law.
The city began its analysis of paid time off compliance about a year ago, in order to identify possible violations of the law from rates of paid sick leave from employer payroll records. Their findings ushered in the changes rolled out on Friday.
Experts applauded the new approach as a common-sense measure that offers greater transparency.
“If you’re a company and you don’t even have half of your people taking one day off, from a common sense perspective, that seems like a pretty good indication that your workers genuinely are not getting sick leave,” said Terri Gerstein, director of NYU Wagner Labor Initiative. “I think it’s a very smart approach that allows them to have a rigorous data base to cut through some of those arguments.”
Gerstein and others argue the agency’s approach is actually conservative — a charge the agency acknowledges in its own report.
That’s because the city’s protected time off law covers a whole range of incidents and emergencies beyond health, including child care and absences due to housing court hearings, that national data does not count, said Daniel Schneider, a sociologist from the Harvard Kennedy School who researches the effect of unpredictable work schedules on household economic security.
DCWP is also rolling out a new “self-auditing” tool for employers to see whether they are in compliance with the law, including whether they are meeting the new use rate benchmarks laid out by the agency, and will issue recommendations on how to comply with the law. The data will not be shared with the agency, Wagoner said.
Gerstein said she hopes the new rules may usher greater collaboration and cooperation from employers
“This is what employers often say that they want. They want clear guidance, they want to know what the rules of the road are so they can follow them,” she said. “This is actually a service for employers.”
Employers who fail to offer protected time off under the law must pay each affected employee at least $500 per year, plus an equal amount as a civil penalty. That means that an employer with 100 employees who violated the law over a three year period owes $300,000, with half of that going directly to employees, and with the rest as a civil penalty. Employees may be entitled to additional compensation in retaliation cases.
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