Giving Employment Laws Teeth
NEWSLETTER VOLUME 2.6
|February 08, 2024
Giving Employment Laws Teeth
You can always tell whether the governing body really means it by the enforcement provisions in the laws. With employment laws, there's a wide range of possible remedies for violations from nothing to the whole kit and caboodle. (Caboodle is such a great word.) The list from lightest to heaviest enforcement options includes:
- Nothing at all. Yep. People really do pass laws without any remedy for violations. These are not serious people.
- Administrative complaint. This is pretty much as good as nothing because the administrative agency always has discretion on whether to do something or not. The answer is usually not.
- Some employment laws like discrimination laws allow a court or agency to force the employer to post notice of their violation. It usually gets posted on the back of the break room door that is always open, along with the wage hour posters.
- Administrative agency enforcement. This is something, but it only works when an agency exists with budget and staff to do the work. (You can always tell which party is in control by which agencies have budget and which don't. Cutting budgets is a lot easier than undoing existing law.) With administrative enforcement, an agency like the Workers' Compensation Appeals Board or NLRB has a hearing, takes evidence, and decides the dispute. Administrative decisions can often be appealed to the civil courts.
- Administrative fines. This allows the enforcement agency to impose a fine on violators rather than compensate the person who was harmed. Fines are often combined with other types of enforcement, but not always. Fines by the government require some type of due process, i.e., notice and an opportunity to be heard. Again, this requires budget and staff.
- Civil action/Injunction. This allows the person who was harmed by the violation to bring a lawsuit in court to recover their damages. Sometimes it allows the court to also order the violator to stop violations and imposes additional penalties if they do. Civil actions only work when there's a lot at stake because lawyers and litigation are expensive for both sides. But one side usually has a lot more resources than the other.
- Attorneys' fees. Legislatures include recovery of attorneys' fees when the power and resources between the likely parties are uneven and the policy behind the laws are important. It ups the ante for the defendant being sued so that they have to take the claim more seriously. It also encourages early settlement for strong claims. Nobody ever enjoys paying the other side's lawyer.
Title VII includes almost all the available remedies—administrative enforcement, civil suits, attorneys' fees, and even shaming. Civil rights are important.
Yet, none of these remedies solves the problem or prevents the law from being violated. That's not how laws work. Nothing happens until someone gets caught. And what happens after that will tell you whether the legislature was serious or it was just political theater.
So awhile back, NYC passed a law giving employees protected leave for medical care and to recover from and deal with domestic violence, sexual assault, or human trafficking. They recently added the right to bring a civil lawsuit, which becomes effective March 20, 2024. Here's a great discussion of the new provisions.
The New York City Council has passed a bill that creates a private right of action for individuals claiming violations of the NYC Earned Safe and Sick Time Act (“ESSTA”). The Council presented the bill to Mayor Eric Adams on December 20, 2023, after which he had 30 days to either sign the bill into law, veto it, or take no action. Since Mayor Adams took no action within 30 days of receiving it, the bill became law and will take effect on March 20, 2024.
As a reminder, the ESSTA requires employers to provide New York City employees with time off to care for or treat illnesses, injuries or health conditions or obtain preventative care for themselves and their family members, and for certain covered reasons where an employee or their family member is a victim of domestic violence, a family or sexual offense, stalking or human trafficking (referred to as “safe leave”). The ESSTA requires employers to provide either 40 or 56 hours of paid or unpaid leave per year, depending upon the employer’s size.
Presently, the sole enforcement mechanism for alleged violations of the ESSA is to file a complaint with the NYC Department of Consumer and Worker Protection (“DCWP”). The DCWP is in turn required to investigate the claim and if it is determined that a violation has occurred, the claim goes before an administrative law judge for further proceedings.
The new amendment will still allow for the filing of complaints with the DCWP but will also enable “any person” to bring a civil action for alleged violations of ESSTA in any court of competent jurisdiction. Individuals may file a civil action in court in addition to a DCWP complaint for the same alleged violation, but individuals will not be required to first file a complaint with or alert the DCWP of an alleged violation before filing suit. Individuals will have two years from the date they knew or should have known about the alleged violation to bring an action.
Where an individual has both filed a complaint with the DCWP and commenced a civil action against their employer for the same alleged violation, DCWP will stay their investigation of the alleged violation until it receives notice that the civil action is withdrawn or dismissed without prejudice. If DCWP receives notice of a final judgment or settlement, the agency will dismiss the complaint unless it determines that the violation was not resolved by such judgment or settlement. The individual must notify DCWP within 30 days of the date that the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.
In addition to compensatory damages already provided for under the ESSTA, the new amendment will allow individuals to seek injunctive and declaratory relief, attorney’s fees and costs, and other relief that the court deems appropriate. The amendment also expands ESSTA’s civil penalty provisions for entities found to be in violation of the law’s provisions regarding the accrual and use of sick or safe time or retaliation to be imposed “on a per employee and per instance basis” (newly added language emphasized).
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