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(a) If an employee is scheduled and available to work for an on-call shift and is compensated for the scheduled time regardless of whether the employee works, the scheduled time constitutes hours worked for the purposes of accrual under the Earned Safe and Sick Time Act.
(b) For employees who are paid on a piecework basis, accrual of safe/sick time is measured by the actual length of time spent performing work.
(c) For employees who are paid on a commission basis, accrual of safe/sick time is measured by the actual length of time spent performing work.
(d) Per diem employees may use safe/sick time for hours they were scheduled to work or for hours they would have worked absent a need to use safe/sick time. For per diem employees or employees with indeterminate shift lengths (e.g., a shift whose length is defined by business needs), an employer shall base the hours of safe/sick time used upon the hours worked by the replacement employee for the same shift. If this method is not possible, the hours of safe/sick time must be based on the hours worked by the employee when the employee most recently worked the same shift in the past.
(e) An employer shall base the amount of safe/sick time used upon the amount of time the employee would have worked on the day they were absent for a covered reason.
(f) An employee of an employer with ninety-nine or fewer employees may carry over up to 40 hours of unused safe/sick time from one calendar year to the next, and an employee of an employer with one hundred or more employees may carry over up to 56 hours of unused safe/sick time from one calendar year to the next, unless the employer has a policy of paying employees for unused safe/sick time at the end of the calendar year in which such time is accrued and providing the employee with an amount of paid safe/sick time that meets or exceeds the requirements of the Earned Safe and Sick Time Act for such employee for the immediately subsequent calendar year on the first day of such year in accordance with § 20-913(h) of the Administrative Code. Regardless of the number of hours an employee carried over from the previous calendar year, an employer with ninety-nine or fewer employees is only required to allow employees to accrue up to 40 additional hours of safe/sick time in a calendar year, and an employer with one hundred or more employees is only required to allow employees to accrue up to 56 additional hours of safe/sick time in each calendar year. If an employee's safe/sick time balance exceeds 40 or 56 hours in a single calendar year, as applicable, an employer is only required to allow the employee to use up to 40 or 56 hours in such calendar year.
Example 1: An employee of an employer with 50 employees accrues 40 hours of safe/sick time in calendar year one and uses 20 hours of safe/sick time in calendar year one. She carries over 20 hours from calendar year one to calendar year two, accrues 40 hours in calendar year two, and does not use any hours in calendar year two. Her safe/sick time balance at the end of calendar year two is 60 hours (20 hours carried over from calendar year one plus 40 hours accrued in calendar year two). She may carry over 40 of those 60 hours into calendar year three and accrue another 40 hours in calendar year three. However, she may only use 40 hours in calendar year three.
Example 2: An employee of an employer with 300 employees accrues 56 hours of safe/sick time in calendar year one and uses six hours of safe/sick time in calendar year one. She carries over 50 hours from calendar year one to calendar year two, accrues 56 hours in calendar year two, and does not use any hours in calendar year two. Her safe/sick time balance at the end of calendar year two is 106 hours (50 hours carried over from calendar year one plus 56 hours accrued in calendar year two). She may carry over 56 of those 106 hours into calendar year three and accrue another 56 hours in calendar year three. However, she may only use 56 hours in calendar year three.
(g) Employee accrual of safe/sick time must account for all time worked, regardless of whether time worked is less than a 30-hour increment. For the purposes of calculating accrual for time worked in increments of less than 30 hours, employers may round accrued safe/sick time to the nearest five minutes, or to the nearest one-tenth or quarter of an hour, provided that it will not result, over a period of time, in a failure to provide the proper accrual of safe/sick time to employees for all the time they have actually worked.
(Added City Record 2/3/2016, eff. 3/4/2016; amended City Record 8/21/2018, eff. 9/20/2018; amended City Record 9/15/2023, eff. 10/15/2023)
An employer may take disciplinary action, up to and including termination, against an employee who uses safe/sick time provided under the Earned Safe and Sick Time Act for purposes other than those described in § 20-914(a) and 20-914(b) of the Administrative Code. Indications of abuse of safe/sick time may include, but are not limited to a pattern of: (1) use of unscheduled safe/sick time on or adjacent to weekends, regularly scheduled days off, holidays, vacation or pay day, (2) taking scheduled safe/sick time on days when other leave has been denied, and (3) taking safe/sick time on days when the employee is scheduled to work a shift or perform duties perceived as undesirable.
(Added City Record 2/3/2016, eff. 3/4/2016; amended City Record 8/21/2018, eff. 9/20/2018; amended City Record 9/15/2023, eff. 10/15/2023)
As used in this chapter and, where applicable, in the Transportation Benefits Law, the following terms have the following meanings:
"Chain business" means a group of establishments that share a common owner or principal who owns a majority of each establishment where such establishments (i) engage in the same business or (ii) operate pursuant to franchise agreements with the same franchisor as defined in general business law section 681.
"Commuter highway vehicle" means a "commuter highway vehicle" as such term is defined in § 132(f)(5)(B) of the Internal Revenue Code.
"Cure period" means the ninety-day period immediately following a finding of a first violation.
"Department" means the Department of Consumer Affairs of the City of New York.
"Employee" means an "employee," "manual worker," "railroad worker," "commission salesman," or "clerical or other worker" as such terms are defined in § 190 of the New York State Labor Law. "Employee" does not include partners, sole proprietors, independent contractors, or two-percent shareholders of S-corporations.
"Employer" means an "employer" as such term is defined in § 190 of the New York State Labor Law and that employs twenty or more full-time employees in New York City. The common owner or principal of a chain business shall be considered the employer of the full-time employees of such chain business.
"First violation" means the first finding by the administrative tribunal that a particular employer has violated the Transportation Benefits Law since July 1, 2016.
"Full-time employee" means an employee who has worked an average of 30 hours or more per week in the most recent four weeks as of any date of counting, any portion of which was in New York City, for a single employer.
"Earnings" shall have the same meaning as the term "gross income" as used in § 132 of the Internal Revenue Code.
"Month" means an employer's regularly established fiscal month.
"Recidivist violation" means any new finding by the administrative tribunal that a particular employer has violated the Transportation Benefits Law, after the first finding by the administrative tribunal that the employer had violated the Transportation Benefits Law since July 1, 2016.
"Subsequent violation" means each continuous thirty-day period after the expiration of the cure period, or after the finding of a recidivist violation by the administrative tribunal, in which the employer has not demonstrated to the department's satisfaction that it is complying with the Transportation Benefits Law.
"Temporary help firm" means an employer that recruits, hires and supplies employees to perform work or services for another organization to: (i) support or supplement the other organization's workforce; (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages or seasonal workloads; or (iii) perform special assignments or projects.
"Transportation Benefits Law" means Chapter 9 of Title 20 of the Administrative Code of the City of New York.
"Transportation fringe benefits" means qualified transportation fringe benefits, other than qualified parking, that may be purchased using pre-tax earnings in accordance with § 132 of the Internal Revenue Code.
"Week" means an employer's regularly established payroll week.
(Added City Record 11/18/2015, eff. 1/1/2016; amended City Record 8/8/2016, eff. 9/7/2016; amended City Record 8/21/2018, eff. 9/20/2018)
(a) An employer's number of full-time employees is determined by calculating the average number of full-time employees for the most recent consecutive three- month period, provided that for an employer that has operated for less than three months, the number of full-time employees is determined by calculating the average number of full-time employees per week for the period of time in which the employer has been in operation.
(b) Full-time employees at all of an employer's or a chain business's locations in New York City shall be counted in determining the number of full-time employees of the employer.
(Added City Record 11/18/2015, eff. 1/1/2016; amended City Record 8/8/2016, eff. 9/7/2016; amended City Record 8/21/2018, eff. 9/20/2018)
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