Earned Sick and Safe Time Act (ESSTA): New Private Right of Action for NYC Workers

New York City has taken a significant step in strengthening workers’ rights by introducing a private right of action under the Earned Sick and Safe Time Act (ESSTA).

This change allows employees to sue their employers directly in court for alleged ESSTA violations, marking a major shift in enforcement and expanding workers’ legal options regarding safe and sick leave.

Earned Sick and Safe Time Act: Private Right of Action in New York Employment Laws

The introduction of the private right of action under the Earned Sick and Safe Time Act recognizes the importance of individual agency in enforcing labor laws. It acknowledges that employees, as the direct beneficiaries of these rights, are often best positioned to identify and address violations in their workplaces. By enabling employees to take legal action, the law fosters a culture of accountability and encourages workers to become active participants in safeguarding their own rights.

What is the Earned Sick and Safe Time Act (ESSTA)?

The Earned Sick and Safe Time Act (ESSTA) ensures that NYC employees can:

• Take leave for personal or health-related reasons
• Address family health concerns
• Seek safety and support in cases of domestic violence or sexual assault
• Covered employees are entitled to 40 to 56 hours of leave per year, depending on their employer’s size. The Department of Consumer and Worker Protection (DCWP) enforces ESSTA and ensures employer compliance.

In October 2023, the DCWP finalized new regulations to align with 2020 amendments to the law. These updates clarified key aspects, including:

• How employer size affects time off
• The inclusion of remote workers
• Notice requirements
• Accrual methods

These clarifications laid the groundwork for the recent introduction of the private right of action.

What is the Private Right of Action Under ESSTA?

This newly introduced private right of action, enacted on January 20, 2024, as Int. 0563-2022, is a game-changer for employees in New York City. 

The amendment permits “any person” alleging violations of the ESSTA to initiate a civil lawsuit in court within two years of becoming aware of the alleged violation. This is a departure from the previous system, in which employees were solely reliant on filing a complaint with the DCWP, which would then investigate the claim and, if necessary, refer it to an administrative tribunal.

What Does This Mean for Covered Employees in New York City?

• Who can sue? Any employee who believes their employer violated ESSTA
• Time limit: Lawsuits must be filed within two years of discovering the violation
• New flexibility: Employees can bypass the DCWP complaint process and go straight to court
• Impact: Empowers workers to hold employers accountable more effectively

Ultimately, this shift significantly empowers employees by allowing them to directly pursue legal action against employers who allegedly violate their rights. Importantly, employees can choose to bypass the DCWP complaint process altogether, giving them greater flexibility and control over how they seek redress for violations.

How Does the New Law Change ESSTA Enforcement?

The private right of action does not eliminate the existing process of filing complaints with the DCWP. Employees still have the option to initiate an investigation through the Department. 

However, the new law introduces a “dual track” system, allowing employees to pursue both a DCWP complaint and a civil action simultaneously for the same alleged violation.

To manage this dual track, the law introduces a stay mechanism. If a civil action is filed, the DCWP will temporarily suspend its investigation until notified that the lawsuit has been withdrawn or dismissed. This prevents duplication and allows the legal process to unfold. Upon conclusion of the civil action, the DCWP can resume its investigation if it identifies any unresolved violations.

This dual enforcement approach provides employees with multiple avenues to assert their rights, offering a comprehensive framework for addressing ESSTA violations. It also promotes transparency and accountability, as the DCWP is required to publicly report on the number and nature of complaints, investigations, and outcomes.

What Penalties & Remedies Are Now Available?

In addition to the private right of action, the new law also strengthens the remedies and penalties available to employees who successfully prove ESSTA violations, aiming to provide more comprehensive relief and discourage employer non-compliance. 

Bigger Financial Penalties

Previously, the law allowed for civil penalties of $500 for the first violation, increasing to $750 for subsequent violations within a two-year period. The amended law, however, introduces a significant change by making these penalties applicable “on a per employee and per instance basis.” This means that for each employee affected by a violation and for each instance of non-compliance, the employer could face these penalties. 

For instance, if an employer fails to provide earned sick time to five employees on multiple occasions, the potential penalties could easily be $5,000 or more rather than just a flat $500 for all violations combined.

Expanded Remedies for Employees

In addition, the new law expands the types of remedies available to employees. Employees can now seek not only compensatory damages for lost wages or other financial losses, but can now also seek injunctive relief (court orders to compel or restrain certain actions by the employer), declaratory relief (a court declaration of their rights), and reimbursement for attorneys’ fees and costs incurred in pursuing their claims. 


This broader range of remedies enhances the deterrence effect of the law, as employers face not only financial penalties but also potential legal mandates to alter their practices. It also allows more employees to seek redress, since their attorney’s fees will likely be covered if the employer is found guilty of violating their rights under the law.

How Does the Private Right of Action Affect NYC Workers?

The introduction of the private right of action, coupled with the enhanced penalties and remedies, has significant implications for employees in New York City. 

Their ability to bring lawsuits for ESSTA violations, along with the increased financial liability for employers, may encourage employers to be more compliant with the law’s provisions and revise their sick and safe policies accordingly.

Think Your Employer Violated ESSTA? Get Legal Help Today.
If you believe your employer denied you earned sick time or violated ESSTA, it’s important to get in touch with legal experts who are familiar with the law and can confidently lead the way. 

To get started, you can contact the legal team at Katz Melinger, PLLC for a free consultation.. We know the ins and outs of the ESSTA and can provide expert advice and representation.

Learn More

• New York Lawful Absence Law: Your Employer Can’t Penalize You for Taking Legal Time Off

• What You Need to Know About Paid Sick and Safe Leave
• Returning from FMLA Leave? Watch for These Violations