In November 2022, New York State Governor Kathy Hochul signed Assembly Bill 8092B into law, amending Section 215 of the New York Labor Law (NYLL), prohibiting employers from retaliating against employees who take a lawful absence leave pursuant to local, state, or federal laws.
The modifications to Section 215 of the NYLL specifically prevent employers from “assessing any demerit, occurrence, or any other point, or deductions from an allowed bank of time, which subjects or potentially subjects an employee to disciplinary action” for the use of “any legally protected absence under federal, municipal, or state law.”
In essence, companies may not threaten, reprimand, discipline, terminate, or otherwise discriminate or retaliate against employees who take lawful absences.
Retaliations Protected Under Section 215
Section 215 of the NYLL prohibits employers from discriminating against employees who report an alleged labor law violation or otherwise aid in a state investigation into such a violation. In 2019, Section 215 was amended to clarify that the phrase “threaten, penalize, or in any other manner discriminate or retaliate” against an employee also includes threatening to report (or actually disclosing) an employee’s citizenship or suspected immigration status to immigration authorities because the person lodged a complaint or otherwise cooperated in an investigation of an alleged Labor Law violation.
The new law—which took effect on February 19, 2023—broadens NYLL’s Section 215 anti-retaliation provisions, further prohibiting employers from retaliating against employees who are absent from work covered by local, state, or federal laws. Some examples include, but are not limited to:
- The Family and Medical Leave Act (FMLA);
- New York State and City Paid Sick Leave Laws;
- New York State Paid Family Leave; and
- The various COVID-19 leave laws.
Additionally, the law will broaden the definition of “threaten, penalize, or in any manner discriminate or retaliate against any employee” to include using an employee’s legitimate leave of absence as justification for discipline, termination, failure to promote, pay reduction, or any other unfavorable change to the terms and conditions of employment.
In other words, when making employment decisions, an employer cannot consider an employee’s protected leave of absence. Although there are a few restricted exceptions, these exceptions are frequently fact-specific, so it is advised that an employer get advice from knowledgeable counsel before initiating adverse action against an employee who is on leave.
Penalties Under the NYLL
Current and former employees may file a lawsuit under NYLL Section 215 to seek financial compensation from employers who infringe on their Section 215 rights. Additionally, the New York State Department of Labor (NYSDOL) may demand that businesses that violate Section 215 reinstate employees and pay victims of those violations liquidated damages, back pay, and front pay. Additionally, the NYSDOL has the authority to impose civil fines of up to $10,000 for initial violations of Section 215 and up to $20,000 for all future offenses.
Given the severity of the penalties for breaking this law, employers should immediately evaluate their leave of absence policies to make sure they are in line with these new anti-retaliation protections. Additionally, employers should keep in mind that any decisions made regarding employment that are based on an employee’s legitimate absence will be in violation of the new laws.
Allen A. Shoikhetbrod is the Managing Partner of Tully Rinckey PLLC’s Albany office and is also the Practice Chair of the New York State Labor and Employment Practice, as well as a Team Leader for the Federal Employment Practice. Allen has extensive experience in federal, state, and private employment law matters, including claims of discrimination, harassment, retaliation, qui tam and whistleblower actions, and disciplinary matters. He can be reached at info@tullylegal.com or at (888)887-7016.
