United States: New York City Establishes Office Of Labor Standards And Issues Proposed Amendments To The Rules For Paid Sick Leave

On November 30, 2015, New York City Mayor Bill De Blasio signed a bill establishing the New York City Office of Labor Standards. This office will make recommendations for worker education, safety and protection, educate employers on labor laws, create public education campaigns regarding worker rights and collect and analyze labor statistics. The Director of the Office of Labor Standards will have authority to conduct investigations, serve subpoenas and impose civil penalties on businesses that violate New York City's labor standards. The Office of Labor Standards will also enforce New York City's Earned Sick Time Act (the Act), which requires most employers in New York City to provide paid sick leave to their employees. To date, the Act has been enforced by the City's Department of Consumer Affairs (DCA).

Soon after Mayor De Blasio signed this legislation, the city proposed additional rules to clarify portions of the Act. New York City is currently accepting comments on the proposed rules and individuals can submit comments through January 12, 2016. The proposed amendments contain some significant changes. Should the rules be enacted as drafted, they would affect the Act as follows:

  • Determining the number of individuals employed by an employer:

    • For businesses that have been in operation for less than one year, the size of the business will be determined based upon the average number of employees per week during the first 80 days of operation in the calendar year immediately preceding the date that the employee used sick time.
    • The business size for an employer that has operated for one year or more is determined by counting the number of employees working for the employer per week at the time the employee uses sick time, unless the number of employees fluctuates, in which case business size may be determined for the current calendar year based on the average number of employees per week during the previous calendar year. For purposes of this subdivision, "fluctuates" means that at least three times in the most recent calendar quarter the number of employees working for an employer fluctuated between less than five employees and five or more employees.
  • Joint employers:

    • Under the changes, where two or more employers exercise some control over the work or working conditions of an employee, the employers may be treated as a "joint employer" of the employee. If an employee is employed jointly by two or more entities, all of the employee's work for each of the joint employers will be considered as a single employment for purposes of accrual and use of sick leave. For example, Company A is a hospitality company that operates a number of restaurants, Company B is one of the restaurants operated by Company A and Company C is another restaurant operated by Company A. Employee X works as a server during lunch shifts for Company B and dinner shifts for Company C. Under this scenario all three companies are joint employers. If Employee X works 20 hours for Company B and 40 hours for Company C, the employee would have accrued two hours of paid sick leave under the Act.
  • Temporary help firms:

    • Pursuant to the proposed rules, the term "temporary help firm" means an organization that recruits and hires its own employees and assigns those employees to perform work or services for other organizations to: (i) support or supplement the other organization's workforce; (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages or seasonal workloads; or (iii) perform special assignments or projects.
    • This additional definition is significant as the revised joint employer rules includes a carve out for employees placed with a business by a temporary help firm as the temporary help firm who places a temporary employee in an organization shall be solely responsible for compliance with the provisions of the Act for the temporary employees it placed, not the business where the individual is placed. To illustrate, a temporary help firm that has 100 employees placed in several different organizations must provide paid sick time to its employees placed at the other organizations, regardless of the size of the organization where the temporary help firm places the employee.
  • Minimum increments for use of paid sick leave:

    • Employers are permitted to set an initial minimum use of sick leave of four hours. For example, where an employer has a four-hour minimum sick leave increment requirement and an employee is scheduled to work from 8 a.m. to 4 p.m. on Mondays, notifies her employer of a doctor's appointment for 9 a.m. on a Monday and that she intends to use sick time and return to work the same day, the employee should report for work at noon if she did not report for work prior to her appointment.
    • The proposed amendments will permit employers to set fixed periods of 30 minutes or less that sick time must be used in when it exceeds the employer's required minimum increment. To illustrate, in the same example as above, the employer's written policy requires employees to use sick time in half-hour intervals that start on the hour or half hour. If the employee arrives to work at 12:17 p.m., the employer can require her to use four-and-a-half hours of sick time and require her to begin work at 12:30 p.m. Similarly, if the employee wanted to leave work at 8:40 a.m. to go to her 9 a.m. doctor's appointment, the employer could require the employee to stop work at 8:30 a.m.
  • Explicitly prohibit employers from requiring employees to appear in person or provide any document prior to using sick time when the need to use sick time is not foreseeable.
  • Clarify the calculation of rate of pay of paid sick time for employees paid on a piecework basis. To determine the rate of pay for an employee paid on a piecework basis, the employer is to add together the employee's total earnings from all sources in the most recent workweek where no sick time was taken and divide that sum by the number of hours spent performing such work during the workweek.
  • Establish that wage supplements (i.e., health, welfare, nonoccupational disability, retirement, vacation benefits, holiday pay, life insurance and apprenticeship training) need not be included when paying an employee who uses paid sick time.
  • Require successor employers to provide employees with its written sick policies upon the sale or acquisition of a business.
  • Written sick time policies must state at a minimum:

    • The employer's method of calculating sick time;
    • The employer's policies regarding the use of sick time, including any limitations or conditions the employer places on the use of sick time; and
    • The employer's policy regarding carry-over of unused sick time at the end of an employer's calendar year.
  • States that an employer cannot distribute the required notice of rights under the Act in place of its own written policy.
  • Prevent employers from denying employees sick time or payment of sick time for failure to comply with its policy when the employer did not distribute its policy in writing to employees.
  • Records that employers must maintain:

    • Records demonstrating compliance with the requirements of the Act, including records of any policies regarding sick time, for a period of three years.
    • Contemporaneous, true and accurate records that show:

      • Each employee's name, address, phone number, date(s) of start of employment, date(s) of end of employment (if any), rate of pay and whether the employee is exempt from overtime;
      • The hours worked each week by each employee;
      • The date and time of each instance of sick time used by each employee and the amount paid for each instance;
      • Any change in the material terms of employment of an employee; and
      • The date that the Notice of Rights was provided to each employee and proof that the Notice of Rights was received by each employee.
  • Establish that an employer's failure to keep or produce written sick time policies and records creates a reasonable inference that the DCA's allegation against it is a fact. Upon creation of the Office of Labor Standards, all references to the DCA will likely be revised to refer to the Office of Labor Standards.
  • Mandate a $500 penalty, on top of any penalties or remedies imposed, for failure to respond to a complaint or provide information requested by the DCA.
  • Enhanced penalties:

    • A finding that an employer has a policy of not providing or refusing to allow the use of sick time required by the Act is a violation of the Act for each and every employee affected by the policy and will subject the employer to penalties on a per employee basis.
    • If an employer does not allow accrual of sick time required by the Act, each and every employee affected must include either application of 40 sick time hours to the employee's sick time balance or, where such information is known, application of the number of sick time hours the employee should have accrued to the employee's sick time balance, provided that such balance does not exceed 80 hours.

In addition to the foregoing changes to the rules regarding the Act, the proposed rules include entirely new sections addressing accrual, hours worked and carry over, employee abuse of sick time and retaliation.

  • Accrual:

    • If an employee is compensated for an on-call shift, regardless of whether the employee works, the scheduled time constitutes hours worked for the purposes of accrual under the Act.
    • For employees paid on a piecework or commission basis, accrual of sick time is measured by the actual length of time spent performing work.
    • For employees with indeterminate shift lengths (e.g., a shift defined by business needs), an employer shall base the hours of sick time used upon the hours worked by the replacement employee for the same shift. If this method is not possible, the hours of sick time must be based on the hours worked by the employee when the employee most recently worked the same shift in the past.
  • An employee rehired within six months who had not reached the required 120 days to begin using accrued sick time shall, upon resumption of employment, be credited with his or her previous calendar days towards the waiting period.
  • Carry over:

    • An employee may carry over up to 40 hours of unused sick time from one calendar year to the next, unless the employer has a policy of paying employees for unused sick time at the end of the calendar year and providing the employee with at least 40 hours of sick time for the immediately subsequent calendar year on the first day of such year.
    • Regardless of the number of hours an employee carried over from the previous calendar year, an employer must allow employees to accrue up to 40 hours of sick time in a calendar year, but need only allow an employee to use up to 40 hours. This new rule is clarified by the following example:

      • An employee accrues 40 hours of sick time in year one and uses 20 hours of sick time in year one. She carries over 20 hours to year two, accrues 40 hours in year two, and does not use any hours in year two. Her sick leave balance at the end of year two is 60 hours. She may carry over 40 of those 60 hours into year three and accrue another 40 hours in year three.
  • Employers can take disciplinary action against employees who use sick time for purposes not covered by the Act, including an employee who engages in a pattern of abuse of leave. A pattern of abuse of leave may be indicated by repeated use of unscheduled sick time on or adjacent to weekends, regularly scheduled days off, holidays, vacation or pay day, taking sick time on days when other leave has been denied and a pattern of taking sick time on days when the employee is scheduled to work a shift or perform duties perceived as undesirable.

Although these changes are only proposed rules, it is expected that the changes to the Act will be enacted in their entirety. As a result, New York City employers should review their sick time policies in order to ensure that they comply with the proposed rules in order to avoid unintentional violations of the Act should the proposed rules be adopted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Gregg M. Kligman
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions