Comments made to DCA by Steven J. Shanker, Esq. re: amendments to NYC Sick Leave Act

In the City that never sleeps, a for-hire vehicle base station never closes. The members of the Livery Roundtable run businesses that operate 24 hours per day 365 days per year. As such, a number of issues face the livery industry that is not prevalent for the average employer who does not operate 24/7/365. The requirement that livery bases be staffed every single minute of every day has caused certain provisions of the Earned Sick Time Act to result in unintended adverse effect upon these employers.

The average company in New York City is not open on Christmas, New Years Day, Labor Day and a number of other holidays. Members of the public need for-hire transportation every day, but on these and other certain well-defined holidays, the public is often traveling to gather with friends and family to celebrate. The added travel by the public on these days makes our clients even busier than usual, thus they need each employee who is scheduled to work to actually show up. Of course, most people prefer to not work on these holidays. This causes many employees to “call-out” and claim they are sick and unable to work when such is not truly the case. This ultimately leaves our clients short staffed. This not only results in the obvious adverse effects upon the operations of our clients business, but also causes the transportation needs of our clients’ customers to be unable to be satisfied. 

Holidays

As the law now stands, if an employee calls out on a holiday at the last moment, the employer has virtually no recourse. The employee is not required to produce a doctor’s note to verify that they are ill and the employer is left short staffed, thus causing harm to our clients business. Their reputation becomes sullied when they do not have sufficient operators to answer the telephone and less than the number of anticipated dispatchers that serve to ensure that the requests for transportation from the public are effectively sent to the for-hire vehicle operators who are the ones who are actually providing transportation to the public. Thus the vicious cycle begins of there being a holiday where more people are seeking to travel, but the for-hire vehicle bases that facilitate such travel are unable to effectively operate because they have a number of employees who did not come to work under the guise of “being sick”.

We believe it is not on onerous burden on the working persons of the City who are scheduled to work on certain well-defined holidays to be unable to use an accrued sick day unless they produce a doctor’s note to document their illness. This would be more equitable because it will allow the employer to be able to rely upon those who are scheduled to work on certain well defined days to show up to perform their job duties, all while permitting those who are legitimately sick to take the day off without any fear of adverse consequences to their job or their income.

Minimum increments for use of paid sick leave

While the New York City’s Earned Sick Time Act allows an employee to earn up to 40 hours of sick time per year, the employer can only mandate that the employee be paid for up to 4 hours if the employee takes a sick day. In other words, if an employee is scheduled to work 8 hours and calls out sick for the day, the employer can only require that the employee be paid for 4 hours. For an employee who has 8 or more hours of time in their “sick bank”, taking an entire day off (8 hours), but only asking to be paid for 4 hours leaves an additional 4 hours in the employee’s “sick bank”. The unintended effect of this is that employees are using the system to obtain 10 sick days instead of 5. The result is that the employee takes 10 sick days and is paid for a total of 5 of them. In essence, time and experience has proven that an employee is more satisfied to take off 10 days and only be paid for 5 of them because it allows them to effectively use some of the sick days as personal days. This was not the intent or purpose of the law.

We believe it would be more equitable if an employer can require that if an employee has 8 or more hours in their “sick bank” and they take 8 hours off, then the employer have the right to pay the employee for the full 8 hours. If the employee has less than 8 hours in their “sick bank”, then the employer should be able to pay the employee for whatever hours remain in their in their “sick bank”. This is not the act of giving something to the employer while taking something from the employee, but simply the act of creating a system where the employee is kept honest in using a sick day for a day in which they are truly sick. To do otherwise, allows the employee to game the system to maximize their days off, all the while hurting the operations of our clients businesses. There does not seem to be any legal or factual rationale for limiting the employer to mandating that an employee who has more than 4 hours in their in their “sick bank” to use and be paid for only up to 4 hours of time off.

Carry Over

As the law now stands, an employee may carry over up to 40 hours of unused sick time from one calendar year to the next, unless the employer has a policy of paying employees for unused sick time at the end of the calendar year and providing the employee with at least 40 hours of sick time for the immediately subsequent calendar year on the first day of such year. If the employee is paid for all of their unused sick time at the end of the year, then the employee is paid for exactly what they earned. In such circumstances, there seems to be no rationale for requiring the employer to providing the employee with at least 40 hours of sick time for the immediately subsequent calendar year on the first day of such year. This would, in essence, be penalizing an employer for paying the employee for their unused sick time at the end of the year. Why should an employee be entitled to 40 hours of sick time that they did not earn at the beginning of the calendar year when the employer paid them for their unused sick time at the end of the preceding year? Under these circumstances, the employee should be required to earn each hour of sick time as if they had used all of their sick time prior to the end of the preceding year. We believe it would be more equitable if an employer chooses to pay employees for all unused sick time at the end of each year for the employee to earn “new” sick time in the usual fashion. To do otherwise, would give the employee an unearned benefit by being given sick time that they did not earn. This surely was not the intent and purpose of the law

Unions and Collective Bargaining Agreements

One of the premises behind the enactment of the New York City’s Earned Sick Time Act was that an individual employee does not have the bargaining power to be able to require employers to give them certain defined sick leave benefits. The law enables the employee to obtain these benefits automatically because without it, the disparity in bargaining power between the employee and the employer will result in the employee gaining little or no sick leave benefits. This is simply not the case when a union represents a class of employees and their employment relationship is governed by a Collective Bargaining Agreement. In such a case, the union that represents a group of employees is arguably in a much greater position to be able to bargain with an employer to obtain at least as much sick leave benefits for the employee union members as possible. In these cases, there is no disparity in bargaining power. To require each employer to still comply with the mandates of the New York City’s Earned Sick Time Act places the employer in a worse position because the mandates of the Earned Sick Time Act thus become the floor for negotiations and not the norm.

A union regularly obtains added concessions from the employer, such as 48-56 hours of sick time for each employee per year. When this occurs, the parties should not be bound by the prohibition that an employer can only require a note from a doctor after more than 3 days of consecutive absences. In other words, if an employer who is subject to the terms of a Collective Bargaining Agreement is willing to give employees the ability to earn and/or use 48-56 hours of sick time per year, then the employer should be able to bargain with the union to require the employee to produce a note from a doctor to document their sick status after 2 days of consecutive absences. Under the law, as it now stands, the employer may be required to bargain with the union and give more benefits than the law requires, but is not permitted to require any benefit in return. In a nutshell, when there is a union and a Collective Bargaining Agreement, there is no rationale, since there is disparity in bargaining power between the employee and the employer, to require the employer to comply with each and every provision of the New York City Earned Sick Time Act.

Pattern of Abuse

Employers are permitted to take disciplinary action against employees who use sick time for purposes not covered by the Act, but on the whole, if the employer is not able to ask the employee to produce a doctor’s note for certain days off, then there is virtually no way for the employer to verify that the employee used sick time for purposes not covered by the Act. Furthermore, while Employers are permitted to take disciplinary action against employees who engage in a pattern of abuse of leave, there is no guidance for employers as to what the Department of Consumer Affairs (“DCA”) would consider to be a “pattern of abuse”. Some employers may consider abuse to be the use of unscheduled sick time on 3 adjacent weekends, while the DCA may not consider this to be a pattern, but merely a coincidence. The same holds true for holidays. Employers are gun shy in taking adverse action against an employee even in the face of a pattern of abuse simply because the employer has no guidance as to what the DCA may find if a complaint is made by the employee and thus, what penalties the employer may face if the DCA disagrees with the employer’s view as to what constitutes a pattern of abuse. We believe it would be more equitable if an employer is given some leeway in determining a pattern of abuse. Such leeway would be afforded and fairness can be meted out when the burden is placed on the employee to provide some kind of documentation or objective proof to document the use of unscheduled sick time on 3 adjacent weekends, 2 consecutive Mondays (to enable the employee to have a longer weekend) or the use of unscheduled sick time on 2 out of 3 consecutive holidays.

Overall, the law is never perfect, especially at the it is enacted, but when our local government that enacted such rules requests comments from stakeholders in certain industries, such as the for-hire vehicle industry, I sincerely hope that they take such comments under well advisement and consider the negative impact as well as the rationale behind such rules. To do otherwise, would be tantamount to purposefully perpetuating certain aspects of a law that has no rationale and is disproportionately unfair to one party to the equation without any rhyme or reason.