United States: Westchester County, NY Enacts Standalone Paid "Safe" Time Ordinance

Last Updated: May 22 2019
Article by Jill M. Lowell, Sanjay V. Nair and Sebastian Chilco

Westchester County, New York has enacted a new ordinance, the "Safe Time Leave Law," that, beginning October 30, 2019, will require all private employers to provide up to 40 hours of paid leave for victims of domestic violence and human trafficking. This ordinance will apply to employees1 who are employed in the county for more than 90 days in a calendar year on a full-time or part-time basis, with few exceptions.2 The new paid leave requirement is in addition to existing paid or unpaid leave obligations employers have under the county's paid sick leave ordinance, as well as anti-discrimination and reasonable accommodation obligations for victims of domestic violence, sex offenses, or stalking under the county's Human Rights Law.

Covered Uses

The law allows eligible employees who are victims of domestic violence (including family offense matters) or human trafficking to use up to 40 hours of paid safe time in a year (calendar year or any consecutive 12-month period defined by an employer) to:

  • attend or testify in criminal or civil court proceedings related to domestic violence or human trafficking; or
  • move to a safe location.

Unlike the paid sick leave ordinance, the paid safe time law does not allow employers to set a minimum increment of use, so employees solely determine how much leave they will use for a covered absence.

Employee Notice and Documentation Requirements

To take paid safe time, an employee must make a request verbally, in writing, via electronic means, or by any other means acceptable to an employer. If possible, the request should include the absence's expected duration. When the need for leave is foreseeable, an employee must make a good-faith effort to provide notice in advance and, when possible, schedule the absence so it does not unduly disrupt the employer's operations. The law does not specifically address required notice for unforeseeable absences.

Regardless of the duration of leave, an employer may require an employee to provide reasonable documentation that leave was used for a covered purpose, which may include any of the following:

  • a court appearance ticket or subpoena;
  • a copy of a police report;
  • an affidavit from an attorney involved in the court proceeding; or
  • an affidavit from an authorized person from a reputable organization known to provide assistance to victims of domestic violence and victims of human trafficking.

Employers must keep confidential the information they receive unless the employee provides written permission to disclose the information or a law requires disclosure. Moreover, employers must keep health or safety information on a separate form in a separate file from other personnel information.

Employer Notice Requirements

Employers must provide employees with a copy of the law and written notice of how it applies to them within 90 days of the law's effective date or at the time of hire, whichever is later. Additionally, at the time the law goes into effect, employers must conspicuously display a copy of the law and a poster in English, Spanish, and any other language the county deems appropriate. Employers that willfully violate the notice and posting requirements may be fined up to $500 for each separate offense.

Prohibitions and Enforcement

Employers cannot condition leave on finding another employee to work during the absence. An employer or any other person cannot interfere with, restrain, or deny the actual or attempted exercise of the right to use paid safe time. Additionally, paid safe time use cannot count as an absence that may lead to or result in discipline, discharge, demotion, or suspension. Finally, the law prohibits retaliation for exercising protected rights; a rebuttable presumption of retaliation exists if an employer takes adverse action within 90 days of an employee's filing a complaint regarding an employer's alleged violation.

Employees may file a lawsuit, or an administrative complaint with the Westchester County Department of Weights and Measures – Consumer Protection, within one year of the alleged violation. Potential relief available includes:

  • Three times the wages that should have been paid during an absence or $250, whichever is greater, for each instance of safe time taken but unlawfully not paid;
  • $500 for each instance of safe time requested but unlawfully denied and not taken;
  • $500 for each instance of safe time unlawfully conditioned upon searching for or finding another employee to work;
  • Actual damages suffered as a result of the violation;
  • Reasonable attorney's fees;
  • Administrative hearing costs; and/or
  • Other monetary or equitable relief as may be appropriate, including but not limited to reinstatement and back pay.

Key Takeaways and Next Steps

Under the new paid safe time law, covered employees do not accrue leave based on hours worked as they do under the paid sick leave ordinance; rather, they are entitled to take a specific amount of protected, paid leave. Although leave is paid, the paid safe time law does not address how employers must calculate the rate of pay for employees. Although we hope the enforcement agency will clarify these and other issues via FAQs or regulations, it is uncertain whether this will occur before the new law takes effect.

Employers that will be subject to the law are encouraged to review whether and how the new law impacts existing accommodation and time-off policies and procedures. They should consider discussing with human resources, payroll, and knowledgeable counsel how the changes will affect operations.

Employers should also monitor the Westchester County website and distribute the required Employee Notice and post the required poster, along with a copy of the law, within the deadlines required by the law.

Footnotes

1 Coverage also includes the Westchester County Government to the extent employees are not subject to a collective bargaining agreement.

2 Coverage does not extend to work performed as a participant in a work experience program established by a social services district, work performed pursuant to federal work study programs, or work performed by employees compensated by or through qualified scholarships under federal law.

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.

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