New York City, NY: Newly Adopted Rules Amend the Earned Sick Time Act

The New York City Department of Consumer Affairs (DCA), which enforces the Earned Sick Time ACT (ESTA), recently published a notice amending the rules of the City of New York (hereinafter, “Adopted Rules”).  The Adopted Rules provide guidance on how the ESTA, which was effective April 1, 2014, will be enforced.

• Joint Employers: The DCA uses a broader definition of joint employers than the NLRB for determining applicability of the ESTA: “two or more employers [who] have some control over the work or working conditions of an employee.” This effects the employee headcount for qualifying an employer to the ESTA, as the DCA will also count employees who are jointly employed.
• Calculating Employee Headcount: The Adopted Rules specify that if the number of an organization’s headcount changes from less than five to five or more employees (or vice versa), employer size will be determined based upon the average number of employees working per week during the 90 days immediately preceding the date that the employee used sick time. If the organization has operated for at least one year, and employee headcount has fluctuated at least 3 times in the most recent calendar quarter, employers should calculate size based upon the average number of employees per week during the previous calendar year.
• Minimum Increments and Fixed Intervals: In addition to the minimum increment of at least 4 hours, the Adopted Rules state that employers can set fixed intervals of 30 minutes for use of paid sick time with fixed start and end times for these intervals.
• Requirements for Written Policies: The Adopted Rules require the employers’ written policy to include the following information: (1) method of calculating sick time (frontloading vs. accrual); (2) how sick time is used (including conditions for use of sick time, such as notice or documentation requirements); and (3) rules regarding carryover of unused sick time. Lastly, if the organization is sold, the new employer must provide a written sick time policy at the time of sale/acquisition or as soon as practicable.
• Recordkeeping: Employers must maintain all records of compliance with the ESTA for a period of 3 years, which may include:  the employee’s information (name, address, date of hire, rate of pay, FLSA classification), hours worked if non-exempt, date and time of each usage of sick time, amount compensated, any change in material terms of employment specific to the employee, and the date/acknowledgment that the Notice of Employee Rights was provided to the employee.
• Rehire Waiting Periods: Employees rehired within 6 months who had not previously completed the 120-day waiting period to begin using accrued sick time must be credited the number of days worked within the same calendar year during the previous employment period towards the new 120-day waiting period.
• Accrual for On-Call, Piecework, Commission and Indeterminate Shift Length Employees: The Adopted Rules provide the following: (1) scheduled time constitutes hours worked for on-call shifts if the employee is scheduled, available to work, and is compensated for the time, regardless of whether the employee actually works; (2) piecework and commission employees’ accrual is measured by the actual time spent performing work, not piece or commission; (3) indeterminate shift length employees’ accrual is based upon hours worked by the replacement employee for the same shift, or hours worked by the employee when he or she most recently worked the same shift in the past.
• Wage Supplements: Employers are not required to pay cash in lieu of supplements for sick time used if supplements are ordinarily used.
• Disciplinary Action: Employers may take disciplinary action, up to and including separation of employment, against employees who use sick time for reasons other than the purposes outlined by the ESTA.
• Retaliation: The Adopted Rules clarify that “adverse employment action” means “any act that is reasonably likely to deter an employee from exercising rights guaranteed under the Earned Sick Time Act.”  Indirect evidence, such as temporal proximity, can be used as evidence of retaliation.
• Penalties: Employers who do not provide proper accrual of sick time will be required to provide the missing sick time hours to an affected employee’s balance, up to a total of 80 hours, or 40 hours if the employer cannot determine the amount of time that the employee should have accrued.