Effective October 30, 2019, Westchester County, NY employers will be required to provide paid leave to employees who are victims of domestic violence or human trafficking.  Leave under the new ordinance will be in addition to paid time off already required to be provided to employees under the Westchester County paid sick leave law, which took effect on April 10, 2019.

Covered Employees and Use of Leave

Under the new law, employees working in Westchester County for more than 90 days in a calendar year will be eligible to use up to 40 hours of paid leave per year for covered purposes relating to the employee being a victim of domestic violence or human trafficking (“safe time”).  Domestic violence also includes certain “family offense matters,” which are defined in detail in the ordinance, but which include criminal acts of harassment, sexual abuse or misconduct, stalking, and identity theft between current or former spouses, parents and children, or members of the same family or household.  Covered employees may use safe time to attend or testify in a criminal or civil court proceeding relating to domestic violence or human trafficking or to relocate to a safe location.

Unlike under the Westchester County paid sick leave law, safe time does not accrue, but rather is available to an eligible employee on an as-needed basis, up to 40 hours per year.  The ordinance does not permit employers to set a minimum daily increment of use, so employees may determine the amount of safe time needed if less than a full day.

Employee Notice and Documentation Requirements

When the need for safe time is foreseeable, employees can be required to make a good faith effort to provide advance notice, as well as to schedule the use of leave in a manner that does not “unduly disrupt” the employer’s operations.  Employers may request reasonable documentation from employees that safe time has been used for a covered purpose, regardless of the duration of the leave.  Reasonable documentation may include a copy of a police report, subpoena, or affidavit from an attorney or victims’ assistance organization.

Confidentiality and Anti-Retaliation

The ordinance requires employers to keep confidential any information about an employee or family member obtained solely for purposes of safe time leave, except if disclosure is required by law or the employee gives written permission for disclosure.  Any “health or safety information” obtained by an employer in this regard must also be maintained on a separate form and in a separate file from other personnel information.

Employers are prohibited from interfering with an employee’s exercise of rights under the ordinance or retaliating against an employee for their use of safe time or attempt to enforce their rights under the law.  Specifically, the law prohibits employers from including safe time as an absence that may lead to or result in discipline, discharge, demotion, or suspension.

Employer Notice Requirements

Employers will be required to provide employees with a copy of the ordinance and “written notice of how the law applies to that employee” within 90 days of the effective date of the law (i.e., January 28, 2020) or upon commencement of employment, whichever is later.  Employers also will be required to display a copy of the ordinance and a poster in a conspicuous area accessible to employees.  It is unclear whether the County plans to issue any form notices to satisfy these requirements.

Remedies Available

Employees claiming a violation of the ordinance may pursue their complaint with the Westchester County Department of Weights and Measures – Consumer Protection or bring a private right of action.  Employees may recover the greater of $250 or three times the wages that should have been paid for each instance of undercompensated safe time taken, and $500 for each instance where employees have been unlawfully denied requested safe time. Other available remedies include reinstatement and back pay, attorneys’ fees, the costs of an administrative hearing, and other monetary and equitable relief.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.