NYC Council Recently Introduced Two Employment-Related Pieces of Legislation: One to Add a Private Cause of Action to Earned Sick Time Act and the Other to Prohibit Non-Compete Agreements for Certain Employees.
On July 20, 2017, the New York City Council introduced two new pieces of legislation relating to employment, Introduction 1667 and Introduction 1663.
The first bill, Introduction 1667, would add a private cause of action to the New York City Earned Sick Time Act (“ESTA”). Under the ESTA, employers with five (5) or more employees who are employed for more than eighty (80) hours a calendar year in New York City must provide paid sick leave. Employers with fewer than five (5) employees must provide unpaid sick leave. Eligible employees begin to accrue sick leave on their first day of employment at the rate of one (1) hour for every thirty (30) hours worked, up to a maximum of forty (40) hours of sick leave per calendar year.
Under the current version of the ESTA, the only way for employees to enforce their rights under the ESTA is to file a complaint with the NYC Department of Consumer Affairs. If the new bill is passed, employees would also have the right to file a civil action in court to enforce those rights as well as be entitled to a new set of remedies. More specifically, the remedies for violations of the ESTA would now include “compensatory damages, injunctive and declaratory relief, attorney’s fees and costs.” Introduction 1667 proceeds to clarify that, (i) for each instance of sick time taken by an employee but unlawfully not compensated by the employer, the employee is entitled to three (3) times the wages that should have been paid or two hundred fifty dollars ($250), whichever is greater; (ii) for each instance of sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker, the employee is entitled to five hundred dollars ($500) per instance; (iii) for each instance of unlawful retaliation not including discharge from employment, the employee is entitled to full compensation including wages and benefits lost, five hundred dollars ($500), and equitable relief as appropriate; and (iv) for each instance of unlawful discharge from employment, the employee is entitled to full compensation including wages and benefits lost, two thousand five hundred dollars ($2,500), and equitable relief, including reinstatement, as appropriate.
Further, when determining compensatory damages, Introduction 1667 would permit a court to consider “the goals of deterring future violations, encouraging employees to report violations, and protecting and improving the public health; the degree of good or bad faith of the employer; the gravity of the violation; any history of previous violations; and the compliance or noncompliance with recordkeeping, notice, and other requirements of this chapter.”
The other bill that was introduced, Introduction 1663, would ban non-compete agreements for low-wage employees and also bar non-competes for all other employees, if the potential that the employee might be asked to sign a non-compete is not disclosed, in writing, at the beginning of the hiring process. More specifically, the bill states that, “[n]o employer shall enter into a covenant not to compete with any low-wage employee of such employer.” The following section states, “[a]n employer may not require a potential employee who is not a low-wage employee to enter into a covenant not to compete unless, at the beginning of the process for hiring such employee, such employer disclosed in writing that they may be subject to such a covenant.”
In Introduction 1663, a “low wage employee” is defined as any employee who is not a “manual worker,” “railroad worker,” or “commission salesman,” as those terms are defined under Article 6 of the New York Labor Law. Also exempt from the bill are individuals employed in a bona fide executive, administrative, or professional capacity earning more than $900/week. The term “covenant not to compete” is defined as any agreement “between an employee and an employer that restricts such employee from performing 1) work for an employer not a party to such agreement for a specified period of time; 2) work in a specified geographical area for an employer not a party to such agreement; or 3) work for an employer not a party to such agreement that is similar to such employee’s work for the employer who is a party to the agreement.”
Be sure to check back with us, as labor and employment lawyers, we will closely monitor the progress of these two pieces of legislation and will provide updates as they occur.