Under the new Westchester County Safe Time Leave Law, covered employees (as described below) may take up to 40 hours paid leave in a calendar year in order to attend or testify at civil or criminal proceedings for domestic violence or human trafficking, and to relocate to a safe location. By January 28, 2020, employers in Westchester County must provide written notice and a copy of the Law to each employee and post signs in English and Spanish in a location easily accessible by employees. After January 28, 2020, for new hires, all covered employers must provide a copy of the Law and written notice of how the Law applies to each employee at the commencement of employment. A copy of the required poster can be obtained at https://humanrights.westchestergov.com/images/stories/pdfs/2019safeposter.pdf (English) and https://humanrights.westchestergov.com/images/stories/pdfs/2019stpostersoct.pdf (Spanish).
All employers in Westchester County, regardless of the number of its employees located in Westchester County, are subject to the requirements of the Law, with limited exceptions for governmental entities. Covered employees means any person employed for hire by an employer in any employment within Westchester County for more than 90 days in a calendar year who performs work on a full-time or part-time basis[1]. Employees are eligible to take paid leave for the purposes of the Law once they have worked for the employer for 90 days. The paid safe time leave is in addition to the sick leave provided under Westchester County’s Earned Sick Leave Law.
Employers may not deny or restrain a covered employee’s valid request for safe time leave. However, an employer may request proof that the safe time leave is being used for the intended purposes of the Law. For example, employers may request a court appearance ticket or subpoena, a copy of a police report, an affirmation from an attorney involved in the proceeding, or an affidavit from an authorized person from a reputable organization known to provide assistance to victims of domestic violence or human trafficking. Any information obtained by the employer for the purpose of verifying the validity of the safe time leave request must be kept confidential and separate from other personnel information.
In addition, employers can neither require the employee find coverage for their position during their safe time leave absence, nor retaliate against them for exercising their rights under the Law, filing a complaint for an alleged violation of the Law, or informing other employees of such rights. In addition, there is a rebuttable presumption of unlawful retaliatory personnel action whenever an employer takes adverse action against an employee within 90 days of the filing of a complaint regarding an employer’s alleged violation of the Law, meaning that the burden of proof will be on the employer to show that such action was unrelated to the employee’s filing of such complaint.
The Westchester Safe Time Leave Law provides that employees can file complaints with the Westchester County Department of Consumer Protection for an employer’s failure to provide the required notice, denial of the leave request, retaliatory action against the employee or other non-compliance with the Law. The Department of Consumer Protection may impose penalties for violations of the Law including (i) an award of three times the wages that should have been paid to the employee under the Law or $250 whichever is greater, for each instance the employer did not compensate the employee, (ii) an award of $500 for each instance the safe time leave request was denied by the employer or conditioned on the employee finding coverage for his or her absence, or (iii) the grant of any additional relief, including actual damages suffered as a result of the violation. In addition, the Law allows for a civil action suit to recover any damages suffered for a violation. Successful plaintiffs may be awarded injunctive relief such as reinstatement to employment and attorneys’ fees. An employer who willfully violates the notice and posting requirements of the Law may be subject to a civil fine in an amount not to exceed $500 for each separate offense.
For further information on this new Law or guidance on revising your policies and procedures, please contact David Paseltiner.
[1] Excluding work performed as a participant in a work experience program established by a social services district, pursuant to work study programs under 42 U.S.C. Section 275, or by employees compensated by or through qualified scholarships as defined in 26 U.S.C. Section 117.