[NY] Can I sue my company for not paying sick leave?
Under NYC’s Earned Safe and Sick Time Act (ESSTA), employers with 5+ employees must provide at least 40 hours of paid safe/sick leave per year. They can’t require you to find a replacement to use it. If they’re violating ESSTA, you can file a complaint.
Because you’re a W-2 employee at a for-profit, you’re clearly covered by ESSTA. Accrual starts on day one, and time off must be paid at your regular rate. Retaliation for using or requesting sick leave—or for filing a complaint—is illegal.
The enforcing agency (NYC Department of Consumer and Worker Protection, DCWP) can order back pay and civil penalties. Employers must also give written notice of ESSTA rights and show accrued/used sick time on pay statements. Missing those is another violation.
Next steps:
- Option 1: File a complaint with DCWP (online or by mail). They’ll investigate and can order payment and fines.
- Option 2: File a lawsuit; you don’t have to go to DCWP first and you can seek attorneys’ fees/costs.
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My employer isn’t paying any of their personal trainers in NYC sick leaves.
Are you classified as an employee or an independent contractor?
I am an employee that files W-2.
Have you checked your employment contract or company policies about sick leave?
Yes, I have.
Anything else the employment lawyer should know before I connect you?
No.
Hi! I’m TJ, an attorney. A few questions to tailor advice: How long have you worked there? Is your employer private or public? For-profit or non-profit?
It’s a for-profit private company. I’ve been there almost a year.
Under NYC’s Earned Safe and Sick Time Act (ESSTA), employers with 5+ employees must provide at least 40 hours of paid safe/sick leave per year. They can’t require you to find a replacement to use it. If they’re violating ESSTA, you can file a complaint.
Because you’re a W-2 employee at a for-profit, you’re clearly covered by ESSTA. Accrual starts on day one, and time off must be paid at your regular rate. Retaliation for using or requesting sick leave—or for filing a complaint—is illegal.
The enforcing agency (NYC Department of Consumer and Worker Protection, DCWP) can order back pay and civil penalties. Employers must also give written notice of ESSTA rights and show accrued/used sick time on pay statements. Missing those is another violation.
Next steps:
- Option 1: File a complaint with DCWP (online or by mail). They’ll investigate and can order payment and fines.
- Option 2: File a lawsuit; you don’t have to go to DCWP first and you can seek attorneys’ fees/costs.
Our employee handbook says we should get sick hours, but none of us do. Should some of us file a complaint? How long does it take, and when should we consider a class action?
Yes, filing with DCWP is a good move. Timelines vary—simple cases can resolve in a few months; broader, multi-employee cases can take longer, especially if the employer resists.
A class action is possible if many employees are affected. It’s longer: file the complaint, seek class certification (which can take months or more), then litigate or settle. A DCWP finding helps if you later sue.
I recommend proceeding with DCWP now to start an official record and investigation. You can still pursue court claims (including as a class) later.
Okay, thank you.
You’re very welcome!
