Proposed Changes to Sick Time Rules and Creation of New Enforcement Agency

Yesterday, the New York City Department of Consumer Affairs (“DCA”) held a public hearing on proposed updates to the Earned Sick Time Act (“ESTA”) Rules.  The proposed Rules, if adopted, would clarify certain aspects of ESTA, and impose additional compliance burdens on employers covered under ESTA.  For more information on ESTA’s requirements, see our earlier posts here and here.

The proposed Rules would specifically affect the following substantive topics:

  • ESTA definitions, namely by adding a definition of “temporary help firm” (Section 7-01 of the Rules);
  • Determining business size under ESTA (Section 7-02 of the Rules);
  • Compliance for joint employers and temporary help firms (Section 7-03 of the Rules);
  • Minimum increments of using paid sick time (Section 7-05 of the Rules);
  • Employee notification of use of sick time (Section 7-06 of the Rules);
  • Rate of pay for sick time used under ESTA (Section 7-09 of the Rules);
  • Sale of an employer’s business and ESTA implications (Section 7-11 of the Rules);
  • Written sick time policies (Section 7-12 of the Rules);
  • Employer recordkeeping requirements (Section 7-13 of the Rules);
  • Enforcement of and penalties under ESTA (Section 7-14 of the Rules);
  • Accrual, hours worked, and carry over (Section 7-15 of the Rules);
  • Employee abuse of sick time (Section 7-16 of the Rules); and
  • Retaliation (Section 7-17 of the Rules).

The proposed Rules likely will be finalized before the DCA transitions its ESTA enforcement authority to the NYC Office of Labor Standards (the “Office”), a move allowed under ESTA’s current definition of “Department."1  The Office was created when Mayor Bill de Blasio signed Bill 743A in November 2015.  It currently is unclear whether the Office will be covered under the jurisdiction of an existing city Agency or whether it will operate as a separate unit.  In addition, Mayor de Blasio has not yet appointed a director to head the Office.  However, and importantly, one of the Office’s primary responsibilities -- enforcing ESTA -- will include, among other duties, receiving complaints, conducting investigations, holding hearings, and imposing penalties.