Procedures of the Office of Labor Policy and Standards

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Monday, July 30, 2018
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Statement of Basis and Purpose of Rules

In March 2016, the Mayor signed into law local law 104 of 2015, which enacted section 20-a of the New York City Charter, establishing the Office of Labor Standards (herein referred to as “Office of Labor Policy and Standards” or “OLPS”). The Mayor designated the Department of Consumer Affairs as the agency in which OLPS would be established. Pursuant to Section 20-a of the New York City Charter, OLPS is tasked with, among many things, enforcing municipal labor laws, such as the Earned Sick Time Act, Chapter 8 of Title 20 of the Administrative Code of the City of New York, the Mass Transit Benefits Law, Chapter 9 of Title 20 of the Administrative Code of the City of New York, the Grocery Workers Retention Law, section 22-507of the Administrative Code of the City of New York, the Fair Workweek Law, Chapter 12 of Title 20 of the Administrative Code of the City of New York, and the Deductions Law, Chapter 13 of Title 20 of the Administrative Code of the City of New York.

These rules amend Chapter 7 of Title 6 of the Rules of the City of New York to establish uniform practices and procedures for the enforcement of the laws enforced by OLPS, where possible. Specifically, these rules:

Contain a definitions section applicable to certain rules and laws enforced by OLPS.

Mandate that the rules shall be liberally construed to accomplish the OLPS mandate in Section 20-a of the Charter, with the understanding that they do not supersede any other provision of the OLPS laws and rules, the Freelancers Law and rules, or the Transportation Benefits Law and rules.

Contain a severability clause that, in the event any provision is deemed invalid or inapplicable in a particular circumstance, maintains the validity and applicability of the remaining rules.

Clarify that OLPS resources and the rights protected by OLPS extend to persons regardless of immigration status.

Clarify that OLPS will maintain confidential the identity of complainants and witnesses to the extent possible.

Clarify that joint employers are individually and jointly liable for violations of laws enforced by OLPS and satisfaction of fines and restitution.

Clarify how employers in a joint employer relationship should determine the number of employees they have.

Clarify how to calculate lost earnings for the calculation of damages when an employee is paid a flat rate or performs more than one job for the same employer.

Clarify how employers must satisfy any obligation to post a notice or other writing required by the laws enforced by OLPS.

Define what may constitute retaliation, including adverse actions taken by employers against employees.

Clarify that both direct and indirect evidence are acceptable to establish a causal connection between an adverse action and the exercise, attempted exercise, or anticipated exercise of rights.

Clarify that the burden of proof for retaliation is whether protected activity was a “motivating factor” for an adverse action.

Clarify the procedures for investigations of alleged violations of laws enforced by OLPS.

Clarify that OLPS may issue a notice of violation for failure to comply with a request for information.

Clarify what constitutes proper service of process.

 Clarify that a failure to maintain records creates an inference in favor of OLPS.

Clarify that a policy or practice that denies a right established or protected by the laws enforced by OLPS constitutes a violation of the applicable provision of the OLPS law or rule for each employee subjected to the policy or practice.

Harmonize the Displaced Grocery Worker Rules with newly proposed Rules for the Office of Labor Policy and Standards.

Delete the definition of “appropriate notice,” contained in the Displaced Grocery Worker rules, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete provisions regarding the posting of notice of change in control by incumbent grocery employers in the Displaced Grocery Worker rules, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete provisions regarding enforcement procedures contained in the Displaced Grocery Worker rules, which are included in the proposed rules for the Office of Labor Policy and Standards.

Place the Transportation Benefits rules in Subchapter C of Chapter 7 and renumber the rules accordingly.

Place the Freelance Worker rules in Subchapter E of Chapter 7 and renumber the rules accordingly.

Correct a typo in the Deductions rules, contained in Subchapter G of Chapter 7.

Additionally, these rules clarify parts of the Earned Safe and Sick Time Act, Specifically, these rules:

Include references to safe time, including adding “safe” to the definitions section.

Clarify that the definition of domestic worker as contained in the Earned Safe and Sick Time Act is limited to employees who are solely and directly employed by individuals or private families for domestic work and does not include workers who are employed, solely or jointly, by agencies.

When enacting the Earned Sick Time Act, the City Council relied on a definition of domestic worker from section 2 of the state Labor Law, which, at the time, only included employees of individual households. The state Labor Law’s definition exempts workers employed by agencies or other third-party employers who provide companionship services, as defined by federal regulations issued pursuant to the Fair Labor Standards Act (FLSA). Subsequent to the enactment of the Earned Sick Time Act, the definition of “companionship services” contained in the FLSA regulation was changed to extend the minimum wage and overtime protections of the FLSA to more workers, including home health aides employed by agencies. This change created ambiguity in the definition of “domestic worker” under the city’s Earned Sick Time Act.

The legislative history of the Earned Sick Time Act makes clear that the City Council intended only employees of individual households to be covered by the definition of “domestic worker.” The clarification made by this rule will preserve that legislative intent.

A narrow definition of domestic worker is consistent with enhancing and expanding rights—safe and sick leave as well as other labor rights—to workers historically excluded from protections because a narrow definition of “domestic worker” means that more workers are included in the group of workers that receives a full forty hours of paid safe and sick time per year.

Delete the definition of “temporary help firm,” which is in substance included in the proposed rules for the Office of Labor Policy and Standards.

Delete the rule about joint employers, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete the rule that protections of the Earned Sick Time Act extend to all workers, regardless of immigration status, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete provisions about how to calculate payment for sick time when an employee is paid on a piecework basis.

Add a provision about how to calculate payment for sick time when an employee is paid a flat rate.

 State that an employer’s written sick time policies must be contained in one writing and they must be distributed, rather than posted or distributed, to employees.

Clarify that an employer that provides paid time off (PTO) for use as sick time must state so in its written policy.

Clarify that a Department writing does not constitute an employer’s written sick time policy.

Delete the procedures by which the Department may file a notice of hearing for an employer’s failure to respond to a notice of investigation and request for information, which is revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete the enforcement procedures, which are revised and included in the proposed rules for the Office of Labor Policy and Standards.

Delete the retaliation provisions, which are revised and included in the proposed rules for the Office of Labor Policy and Standards.

Public Hearing
Subject: 

Proposed Rules Related to Procedures of the Office of Labor Policy and Standards

Public Hearing Date: 
Monday, July 30, 2018 - 10:00am
Contact: 

Casey Adams, 212-436-0095, cadams@dca.nyc.gov

Location: 
NYC Department of Consumer Affairs
42 Broadway 5th Floor
New York, NY 10004