Department of Consumer and Worker Protection Announces Decision Awarding $172k to Worker Who Was Retaliated Against for Asserting Paid Safe and Sick Leave Rights

NEW YORK, NY – Department of Consumer and Worker Protection (DCWP) Commissioner Lorelei Salas today announced that the Office of Administrative Trials and Hearings (OATH) has ordered an employer to pay $1,500 in civil penalties and $172,215.30 in restitution to a worker who was wrongfully terminated for using sick leave. The worker, who had previously been recognized for doing excellent work with the employer, had a series of doctors’ appointments and then requested several days off to deal with his health issues. The company, after demanding confidential information about his medical issue, fired him that day.

OATH’s decision, the first case brought under DCWP’s fast-track protocol that prioritizes responding to claims of retaliatory termination, finds that Brewer, Attorneys & Counselors (Brewer Firm) and William A. Brewer violated the NYC Paid Safe and Sick Leave Law by failing to maintain written sick leave policies, requiring that the worker provide a medical reason, and illegally retaliating against the worker for using the leave. The decision awards the worker restitution for the wrongful firing and backpay for his time out-of-work since being fired.

“We applaud the judge’s strong statement that employers will face serious consequences for retaliating against workers who assert their paid safe and sick leave rights. Shame on any business that denies workers their rights or punishes them for exercising their rights– we will not tolerate any such behavior,” said DCWP Commissioner Lorelei Salas. “We hope this sends a message to employers across all industries: no one is above the law. All employees deserve to use the sick leave they earn without fear of retaliation and we are committed to fighting for all New Yorkers regardless of their background or occupation.”

Under the NYC Paid Safe and Sick Leave Law, employers with five or more employees who work more than 80 hours per calendar year in New York City must provide paid safe and sick leave to employees. Employers with fewer than five employees must provide unpaid safe and sick leave. Employers are required to maintain a written safe and sick leave policy and can only require medical documentation for an absence of more than three days if it is in a compliant written policy. The law prohibits employers from requiring the health care provider to specify the medical reason for the leave. It is also illegal for an employer to retaliate against an employee for using the leave or filing a complaint.

DCWP’s case was handled by Agency Attorneys Hillary Scrivani and Emily Hoffman, supervised by Senior Enforcement Counsel Haeya Yim, of the Office of Labor Policy & Standards, which is led by Deputy Commissioner Benjamin Holt.

Employers and employees can visit nyc.gov/workers or call 311 (212-NEW-YORK outside NYC) for more information including the required Notice of Employee Rights, one-page overviews for employers and employees, and the complaint form. DCWP also developed tools to help employers keep track of employees’ hours worked and safe and sick leave used, as well as model forms for verification of authorized safe and sick time used, safe and sick time.

Since the law went into effect, DCWP has received 1,844 complaints about the Paid Safe and Sick Leave, closed 1,711 investigations, and obtained resolutions requiring more than $10 million combined fines and restitution for 32,159 workers. DCWP has been successful in achieving this widespread impact with relatively few complaints because it leverages its proactive investigation authority to expand an investigation beyond an individual complainant to an entire workplace. Where applicable, DCWP uses this approach to maximize recoveries for affected workers and to create the best incentives for compliance going forward.

Through DCWP, the de Blasio administration continues to lead the nation on advocacy around the importance of municipal workplace rights and protections. In May 2016, Mayor de Blasio announced that the City’s New Office of Labor Policy & Standards (OLPS) would be housed at DCWP. DCWP’s OLPS is now the largest municipal labor standards office in the country with a robust staff of attorneys, investigators, outreach and education specialists, as well as research and policy analysts. For more information about the Office and the City’s workplace laws, visit nyc.gov/workers.