Congress enacted the first federal paid sick leave law in the nation’s history in March in response to the global COVID-19 pandemic. The Families First Coronavirus Response Act (FFCRA) creates a new system of paid sick leave and expands unpaid leave under the Family and Medical Leave Act (FMLA). For a New York City employment attorney, of course, one of the first questions about any new law is how to enforce it. The FFCRA relies on existing laws’ enforcement mechanisms, and new regulations from the Department of Labor (DOL) leave some holes in workers’ ability to enforce their rights.
Paid Sick Leave and Expanded Family and Medical Leave
Two divisions of the FFCRA address leave for employees during the pandemic: The Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The benefits offered by these laws are restricted, however, based on an employer’s number of employees. Employers with five hundred or more employees are not included in either law’s definition of “employer.” Employers with fewer than fifty employees can claim an exemption from both paid sick leave and expanded family and medical leave if they can show that providing leave would threaten the economic viability of their business.
Enforcing the EPSLA
The EPSLA uses the enforcement mechanisms of the Fair Labor Standards Act (FLSA). Covered employers who fail to provide paid sick leave as required by the EPSLA commit a minimum wage violation under the FLSA. Aggrieved employees may recover their unpaid wages as damages, plus “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). They may also obtain equitable relief, including injunctions against further violations. See id. at § 217.
Under the FLSA, an employer could be liable if they “discharge or in any other manner discriminate against any employee” for complaining about or reporting violations. Id. at § 215(a)(3). Employees can bring suit for lost wages and equitable relief, such as reinstatement.
The EPSLA prohibits employers from “discharg[ing], disciplin[ing], or in any other manner discriminat[ing] against any employee” who uses authorized leave or reports an alleged violation of the law. Pub. L. 116-127 § 5104. It only provides for penalties, however, against employers who “willfully” violate this provision. Id. at § 5105(b). In this sense, the EPSLA’s protections are narrower than those of the FLSA. See also 29 C.F.R. § 826.150(b).
Enforcing the EFMLEA
Employers could be liable for lost wages and other damages under the FMLA if they interfere with an employee’s use of authorized leave, or retaliate or discriminate because an employee uses their leave time. 29 U.S.C. §§ 2615(a), 2617(a). The EFMLEA relies on the FMLA’s enforcement provisions regarding private causes of action, but with an important limitation.
While the EFMLEA applies to all employers with fewer than five hundred employees, the FMLA only covers employers with fifty or more employees. See id. at § 2611(4)(A)(i). The EFMLEA specifically states that employees of businesses with fewer than fifty employees cannot bring a private cause of action under the FMLA for alleged violations. See Pub. L. 116-127 § 3104, 29 C.F.R. § 826.151(b).
The knowledgeable and experienced New York City employment attorneys at Phillips & Associates help represent workers in claims for unlawful employment practices under federal, state, and city law. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to see how we can assist you.