Statement Before the New York City Council Committee on Civil Service and Labor

This statement is submitted by Socheatta Meng, Legislative Counsel at the New York Civil Liberties Union (“NYCLU”). Thank you to the members of the Committee on Civil Service and Labor for providing the opportunity to submit testimony today on legislation that would strengthen Local Law 46, also known as the Earned Sick Time Act, and expand the scope of this important law.

The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across the state, and nearly 50,000 members. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

New York City has experienced steadily increasing inequality. But Int. 1-2014 represents a new chapter in our city. With our new class of council members and our new mayor, who has pledged to address economic inequality by taking leadership on this legislation amongst other proposals, we are entering a new era where there is the political will, and ultimately hope, to address the challenges that have long faced the city’s most vulnerable communities.

The Earned Sick Time Act, enacted in June 2013, will provide approximately one million workers the right to paid sick days when the law takes effect on April 1, 2014. The proposed legislation, Int. 1-2014, would extend this right to an additional 500,000 workers by requiring all businesses with at least five employees, and not just the largest employers, to provide workers paid sick days; by providing the benefit to all manufacturing workers; and by expanding the categories of family members whom employees are allowed to take time off to care for. Additionally, the bill recognizes that even in times of widespread economic distress, working families need support, and it is probably during these times that they need it most. Rather than making the effective date of the new law contingent upon the city’s economic conditions, the bill proposes to establish one effective date independent of this factor. Int. 1-2014 would also strengthen the enforcement of this policy in several ways in order to ensure that the right is a real and meaningful one.

The NYCLU supports this legislation, and urges the City Council to pass it so that the many families who struggle to work and care for their loved ones are not forced to choose between these two necessities.

Workers who are not permitted paid sick time must choose between going to work or staying home and losing pay when illness strikes a family member. And if a worker chooses the interests of family over work, that worker may no longer have a job. The lack of paid sick days is especially harmful for low-wage workers, of whom many do not receive this benefit. According to the federal Bureau of Labor Statistics, only 32 percent of those workers in the bottom quarter of wage earners receive paid sick leave, compared with 87 percent of those workers in the top quarter of wage earners. For low-wage workers, a single day without pay could mean not being able to afford groceries or pay the rent at the end of the month. When illness strikes, not only is the health of these workers and their families at risk, but also their fundamental ability to survive financially.

This issue is also a matter of race and ethnicity; low wage workers are disproportionately represented in communities of color. According to a 2013 report by the Community Service Society, approximately two-thirds of low-income Latinos cannot take a paid day off to care for themselves or a family member when sick. Among low-income black workers, more than half are not allowed to take a paid sick day.

Int. 1-2014 would further the reach of the Earned Sick Time Act, thereby providing increased economic stability to many more New York City workers and families who need this support.

While the NYCLU supports this legislation, we have a continuing concern with the “Changing schedule” provision in the Earned Sick Time Act (§20-915), which is left intact under Int. 1-2014. Under this provision, an employee who has called in sick may upon mutual consent of employer and employee pick up another shift in the same period. If the employee exercises this option, she is not paid for the sick day; in effect, the extra shift is substituted for the sick day.

This provision may serve the interests of both employer and employee if both parties have equal bargaining power. In such a relationship, however, the bargaining power is not equal. Consequently there is a well-founded fear that this provision will actually compel many shift workers to work a shift against their wishes after returning from a sick day – or face retaliation upon the refusal to do so. This anticipated impact extends to the city’s 200,000 restaurant workers, whose use of paid sick leave would likely be compromised under this provision.

In a letter to the City Council, Beily Durbin, a restaurant worker for over twenty years described the conditions facing workers that she witnessed and experienced. Not only do workers face pervasive and persistent pressure to exchange shifts with someone who is sick, but they also face harsh repercussions – including termination – when they are absent, even when sick. This suggests that the “Changing schedule” provision may work to the disadvantage of the most vulnerable and poorly paid workers.

In light of these concerns, we urge the City Council to include affirmative measures in the Earned Sick Time Act that will help to ensure compliance.

Based on opposition to this policy, there is good reason to believe that certain (perhaps many) employers will not make a good-faith effort to comply with the paid sick leave mandate. For this reason the legislation should include a provision that directs the City Council’s Committee on Oversight and Investigation to conduct a citywide field investigation, including extensive interviews with workers, that evaluates the degree of compliance with the new law, and proposes on-going enforcement measures, if warranted. The investigation should be undertaken one year from the effective date of the new law.

We also urge the City Council to include in this legislation a provision that provides workers unlawfully deprived of paid sick leave with the right to file a civil claim. If we are to make this policy as robust and protective as possible, we must ensure that workers whose rights are violated may enforce the mandate of the law. An administrative remedy, alone, is not sufficiently protective of this right.

Int. 1-2014 is important legislation that would improve the well-being and financial stability of many working families in New York City who need this support. With the above suggested amendments, we urge the City Council to pass this legislation.