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New York State Employee Rights

In addition to federal laws, employees who work in New York State may be entitled to protections under New York state laws. These include, but are not limited to:

New York Paid Family Leave

New York State’s Paid Family Leave Law guarantees workers time off to care for a seriously ill family member (including a child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent), or to address certain military family needs. The law protects full-time and part-time employees of private employers, regardless of immigration or citizenship status. To be eligible for paid leave employees must have worked for the employer for six months, or 175 days if an employee works less than 20 hours per week.

In 2020, the law gives up to ten weeks of family leave; in 2021 it will give up to 12 weeks of leave. In 2020, employees can receive 60% of their average weekly pay, up to $840.70. Employees have the right to maintain their healthcare coverage during the leave period, and return to work when the leave is over.

In response to the pandemic, New York State has enacted a new law that provides a paid leave expansion for workers who are subject to a government-issued order of quarantine or isolation and are physically unable to work remotely, or are parents of minor children subject to a government-ordered quarantine or isolation.  The New York State Department of Labor has published guidance about how to obtain a mandatory or precautionary order of quarantine your Local Health Department: https://paidfamilyleave.ny.gov/system/files/documents/2020/03/obtaining-order-of-quarantine.pdf.  Eligible workers must exhaust any emergency sick leave that the employer provides first. The new law requires employers to pay full wages up to $840.70 per week. Workers making more than that may be eligible for additional benefits through a temporary disability insurance program.

New York State Human Rights Law

New York State’s Human Rights Law protects employees, contractors, subcontractors, vendors, consultants or others providing services in the workplace, including domestic workers. Employers cannot harass any individual based on their age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, pre-disposing genetic characteristics, familial status, marital status, or domestic violence victim status. Employees are also protected from retaliation if they seek to assert their rights to be free of harassment based on these characteristics.

New York Labor Law

The New York Labor Law sets the minimum wage that employers must pay and employees, requires overtime payments for certain employees who work more than 40 hours a week, and prescribes when certain rest breaks must be given. New York State’s Domestic Workers’ Bill of Rights also extends pay and rest period protections to domestic workers. Employers cannot retaliate against employees who seek to vindicate their rights under these laws. In some cases, the state law may provide broader protections than the federal law, so if you have questions about how your employer is paying you, speak with an attorney about your rights.

New York Whistleblower Laws

Currently, New York State has limited protections for employees that disclose illegal conduct of employers that create a substantial and specific danger to the public health or safety. New York Labor Law § 740 protects employees from being retaliated against by an employer for disclosing to a supervisor unlawful conduct that creates a substantial and specific danger to public health or safety. The conduct they report must be an actual violation of a law. Under New York Labor Law § 741, healthcare workers are protected from retaliation when they disclose to a supervisor conduct that the employee reasonably believes creates an improper quality of patient care, or if the employee refuses to participate in that conduct. Under this provision, where the improper quality of patient care presents an imminent threat either to the public health and safety or to the patient, and the employee reasonably believes that reporting the violation to their supervisor would not correct the problem, employees are protected from retaliation if they report to a public body first (i.e. an administrative agency or law enforcement agency, etc.).

New York State’s False Claims Act also protects employees from retaliation if they report concerns about conduct that defrauds the state government or amounts to tax fraud.

The New York whistleblower laws described above are very particular statutes. We advise any New Yorker who believes their employer is engaging illegal conduct to contact an attorney immediately so you can take steps to make sure you are protected.

New York mini-COBRA

The federal COBRA law and New York’s COBRA law (known as “mini-COBRA) allow an employee with insurance through an employer policy to maintain that coverage after employment ends. If an employee elects to maintain the coverage, the employee must pay the full premium cost even if an employer paid a portion of the premium during the period of employment. COBRA authorizes an additional 18 months of coverage for an employee, and New York’s mini-COBRA extends that right an additional 18 months, up to a total of 36 months of coverage.

New York mini-WARN

New York’s “mini-WARN” Act requires 90 days’ advanced notice when an employer makes a mass layoff. The mini-WARN Act applies to private businesses with 50 or more full time workers in New York State, and covers closings affecting 25 or more workers, mass layoffs involving 25 or more full-time workers (if the 25 or more workers make up at least 33% of all the workers at the site), mass layoffs involving 250 or more full-time workers, and certain other relocations and covered reductions in work hours.

New York Temporary Disability Insurance Law

The State of New York’s Temporary Disability Insurance program provides payments to some workers who are temporarily unable to work if they are employed in New York State. To be eligible for the benefit, full-time employees must have been with the employer for at least four consecutive weeks, and part-time employees for 25 days. The benefit provides cash payments up to half of the worker’s average weekly wage up to $170 per week, up to 26 weeks.

In this unprecedented time, protections may be added, removed, or changed at any time, and it is important to consult with an attorney to understand what rights you may have as an employee in New York state.

New York Paid Sick Leave

Beginning on January 1, 2021, employees will be entitled to earn sick leave at a rate of 1 hour of leave for every 30 hour worked. The maximum amount of sick leave that an employer must allow an employee to accrue in a year, and whether the leave is paid, depends on the size of the employer. Employers with 100 or more employees must allow employees up to 56 hours of paid sick leave; employers with between 5 and 99 employees must allow 40 hours of paid sick leave; and employers with 4 or fewer employees must give up to 40 hours of unpaid sick leave (unless that employer has a net income over $1 million, in which case the leave must be paid).

An employee can use the leave time to recover from their own physical or mental illness or injury, to seek medical care, to care for a sick family member, or as “safe time” - to address non-medical issues related to sexual or domestic violence. The law defines “family member” to include the employee’s parent, child, spouse, domestic partner, sibling, grandchild, grandparent, or child or parent of the employee’s spouse or domestic partner.

During the leave period, the employee must be paid the greater of their regular wage, or the full state minimum wage. Employers are prohibited from retaliating against employees who assert their rights under the law.

Published: April 10, 2020

New York City Employee Rights

In addition to federal and state laws, employees who work in New York City may be entitled to protections under City laws. These include, but are not limited to:

NYC Paid Safe and Sick Leave Law

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 up to 40 hours of paid leave for workers who need safe or sick leave. Employers with fewer than five employees must provide 40 hours of unpaid leave. Workers may begin to use sick leave 120 days after their first day of employment. The law covers employees regardless of immigration status.

Workers have the right to use sick leave for the care and treatment of themselves, a family member, or a person whose association with the worker is so close that they are the equivalent of family. Employers must allow workers to use sick leave when a public official closes their business, the worker’s child’s school, or child care provider due to a public health emergency. Safe leave can be used by workers when they or a family member has been the victim of any act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking, to plan their next steps and focus on safety without fear of penalty.

Employers cannot require medical documentation from workers until they have been absent for more than three consecutive days. Employers may not engage in or threaten retaliation against employees or exercise-or seek to exercise-these rights. Retaliatory actions include firing, or any other act that punishes a worker, or is likely to deter an employee from exercising their rights under the law.

NYC Human Rights Law

Like federal and state statutes, NYC’s Human Rights Law prohibits discrimination based on gender, religion, race, ethnicity, or national origin. But NYC law goes further: it extends protections to workers regardless of immigration status, protects sexual orientation and gender identity, and covers independent contractors and freelancers.

NYC Fair Workweek Law

Under NYC law, fast food and retail employers must give workers advance notice of work schedules, including schedule changes.

In some cases, if those schedules change the employer must pay the employee a premium. Fast food employers must give workers premium pay for schedule changes with less than 14 days’ notice. That includes cases when the employer asks an employee to cover the shift of a sick coworker, or when the employer cancels scheduled shifts. Retail employers cannot require an employee to work additional hours with less than 72 hours’ notice, or cancel or reduce and employee’s hours with less than 72 hours’ notice, unless the employer obtains written consent from the employee. These requirements do not apply to retailers when the City or State declares a state of emergency that closes the business.

NYC Temporary Schedule Change Law

Employees can ask to make temporary changes to their schedules for certain personal events twice per year, totaling no more than two days. These two days are in addition to an employee’s sick leave. Temporary schedule changes can include working remotely, arriving to work later and leaving later, or using short-term unpaid leave. Time off for a temporary schedule change can be paid or unpaid.

In this unprecedented time, protections may be added, removed, or changed at any time, and it is important to consult with an attorney to understand what rights you may have as an employee in New York state.

Published: March 24, 2020