New York State’s Lawful Absence Law
New York State Assembly Bill A8092B, referred to as New York State’s Lawful Absence Law, recently went into effect.[1] The Law, which amends New York Labor Law §215, prohibits employers from threatening, penalizing, discriminating, or retaliating against employees for any lawful absences under federal, state, or local law, including legally protected absences under New York’s paid family leave and paid sick leave laws.[2]
More specifically, the Lawful Absence Law precludes employers from “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”[3] The prohibition of any “point, or deductions from an allotted bank of time” means that employers can no longer maintain “no fault” attendance policies, which are often used to limit absenteeism where employees accrue points akin to demerits on their record for each absence, regardless of the reason behind it. Once an employee’s total points cross a certain threshold, under such “no fault” attendance policies, the employer can undertake disciplinary action or even terminate the employee. Such policies treated legally protected absences, such as jury duty and voting leave, the same as tardiness and absenteeism. With the new law in place, employers are obligated to distinguish the reason behind the absence, and can no longer undertake retaliatory measures for an employee’s protected absences.
The consequences of noncompliance may be severe and costly for employers. Under the Lawful Absence Law, the New York State Department of Labor (NYDOL) can investigate alleged violations, and, if it decides in favor of the employee, may award liquidated damages, back pay, front pay, or reinstatement. In addition, the NYDOL may also issue penalties of up to $10,000 for initial violations and up to $20,000 for any subsequent violations of N.Y. Labor Law §215.[4]In addition to actions undertaken by the NYDOL, an employee may also pursue claims of violation through a private cause of action in court to seek out similar remedies.
Accordingly, it is important that employee handbooks, policies, and employment agreements are carefully reviewed and evaluated for any absence control policies that may not be compliant with the new law.
[1] NY State Assembly Bill A8092B (nysenate.gov)
[2] New York State Department of Labor Announces Lawful Absence Protections Now in Effect | Department of Labor (ny.gov)
[3] Id. at 1.
[4] Id. at 2.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Ethan Krasnoo who counsels clients in areas of complex commercial litigation, arbitration, mediation and dispute resolution, and employment, intellectual property, and entertainment and media. Mr. Krasnoo is admitted to practice law in New York, the United States District Courts for the Southern and Eastern Districts of New York, the United States Court of Appeals for the Second Circuit and United States Tax Court.