Multiple cities have enacted laws requiring employers to provide paid sick leave to their employees working within city limits. New York is the largest municipality to have adopted sick leave legislation. The New York City Earned Sick Time Act (Act) becomes effective on April 1, 2014. Entertainment Partners (EP) is sharing general information about the Act in this Alert to assist clients with their obligations under the Act. We also intend to post on our website soon a set of FAQs containing examples to further explain more complicated parts of the Act.
What Is the Act in a Nutshell?
Employers with at least 5 employees will need to provide a minimum of 5 paid sick days per calendar year to eligible employees. Employers with fewer than 5 employees will need to provide a minimum of 5 unpaid sick days per calendar year to eligible employees. The Act does not prohibit more generous sick leave programs.
Who’s Responsible Between the Client and EP?
As the employer hiring the production workers and directing and controlling their activities, the production company is the responsible employer for compliance with the Act. EP will assist in supporting your needs regarding this accrual.
Which Employees Are Eligible?
Employees employed more than 80 hours in New York City in a calendar year, whether full-time, part-time or temporary, are eligible to earn sick leave under the Act.
Are Union Production Worker Employees (PWEs) Excluded?
Potentially, yes. The Act does not apply to employees covered by a valid collective bargaining agreement (CBA) that expressly waives the Act and provides paid days off. Also, in the absence of waiver, for any CBAs in effect on April 1, 2014, compliance is postponed until the CBA expiration date.
Briefly, How Does the Act Work?
- Leave Amount
Minimum of 5 days (40 hours) per calendar year. Whether the leave is paid or unpaid depends on the employer’s size. The employer is not obligated to allow employees to use more than 40 hours of earned sick time in a calendar year.
- Accrual Rate
1 hour of leave for every 30 hours worked, capped at 40 hours/year unless the employer chooses to provide more than the minimum 40 hours (5 days) leave.
- Waiting Period
Eligible employees earning leave can’t use it until 120 days from the later of April 1, 2014 or start of employment.
- Permitted Uses
Leave earned under the Act can be used by the employee for (i) the employee’s own illness or injury; (ii) care of the employee’s family member (includes spouse, child, parent, domestic partner, grandparent, grandchild, sibling or child/parent of the employee’s spouse/domestic partner); or (iii) public health emergency closures of the employee’s place of business or child’s school or daycare provider facility.
- Requesting Leave
Employees can be required to provide up to 7 days’ advance notice for foreseeable leave needs and as soon as practicable for unforeseeable leave needs.
- Leave Validation
Employees can be required to confirm in writing that the sick leave was used for reasons permitted under the Act, but a signed doctor’s note may only be required for absences exceeding 3 consecutive work days.
- Carry-Over and Termination
Employees can either be paid out or carry over up to a maximum of 5 days’ unused sick leave per year. Employers do not have to pay unused sick leave at end of employment.
- Breaks in Service
Employees rehired within 6 months after separation regain their unused sick leave (to the extent not paid out) at start of re-employment.
Is There a Notification That Must Be Provided to Employees?
Yes. New and current employees must be provided a notice of rights under the Act. The New York City Department of Consumer Affairs (NYCDCA) in charge of enforcing the Act published a model notice on March 20th for employers to use or adapt. New employees must be provided the notice at start of employment, and current employees need to be provided the notice by May 1, 2014. We tailored the model NYCDCA notice for productions to eliminate inapplicable information, such as use of domestic help, and added an employee acknowledgment to facilitate self-contained proof of receipt. A sample adapted notice is included with this alert and will be available soon on the website for client additional customization.
What Are the Penalties for Violating the Act?
Penalties vary based on nature and number of violations. Small employers (fewer than 20 employees) have a 6-month compliance safe-harbor and will not be penalized for violations occurring before October 1, 2014. Non-compliance with the written employee notice of rights provision can lead to a penalty of up to $50 per employee not given proper notice. Failure to pay sick leave where required may be penalized the greater of $250 or triple wages that should have been paid in each instance. Improper denial of sick leave carries a $500 penalty for each instance. Retaliation for assertion of Act rights or termination of employment in violation of the Act is subject to a $500 penalty (retaliation), $2,500 penalty (termination), restoration of lost wages and reinstatement. Additional civil penalties for first ($500), second ($750) and subsequent ($1,000) violations apply. An aggrieved employee has a 2-year statute of limitations to file complaints with the NYCDCA.
Where Can I Get Further Information?
The NYCDCA has a web-page dedicated to the Act and is adding content as the April 1 effective date approaches.
If you have any questions not addressed by the NYCDCA Act web page, please feel free to contact Florence Mitchell-Brown, Vice-President, Payroll Operations New York, at 646.473.9024 or firstname.lastname@example.org, or Cecilia Escobar, Vice President, Payroll Operations, at 818.955.4316 or email@example.com.