Comptroller Stringer Audit Uncovers Lagging Enforcement by DCWP of the City’s Earned Sick Time Act

NYC Department of Consumer and Worker Protection (DCWP) failed to ensure employers paid required restitution to 38 percent of the workers in the audit sample

DCWP did not enforce the late fees agreed to by employers in consent orders

when employers delayed or reneged on their agreements to pay workers

Comptroller Stringer recommends DCWP improve enforcement and increase transparency by tracking and publicly reporting the number of employees who actually receive sick leave restitution payments, and amounts received,

as a result of its investigations

  New York City Comptroller Scott M. Stringer released a concerning new audit that uncovered the New York City Department of Consumer and Worker Protection (DCWP), the agency responsible for enforcing New York City’s Paid Sick Leave Law, failed to ensure employers paid required restitution to 38 percent of workers in the audit sample, under the city’s Earned Sick Time Act (ESTA). Although DCWP successfully investigated numerous ESTA complaints and negotiated restitution orders with employers, the agency failed to ensure that 872 of the 2,313 employees in the audit sample actually received their sick time payments from their employers. ESTA, also known as the Paid Sick Leave Law, went into effect in April 2014.

The Comptroller’s audit found that DCWP’s tracking and pursuit of the restitution payments employers agreed to pay to their workers were insufficient to ensure the workers were properly protected. The ESTA was intended to give relief to workers across the city by granting the right to use sick leave for the care and treatment of themselves or a family member.

“Treating our city’s workers with the dignity and respect that they deserve is not an optional principle to be embraced on an ad hoc basis – it’s the required standard in the City of New York. That means the City must ensure employers fulfill their legal obligation to pay their employees fair wages, including paying for sick time off,” said New York City Comptroller Scott M. Stringer. “While the Earned Sick Time Act was a major step forward, our City government needs to step up to the plate to properly enforce the law and ensure fairness for workers. Enforcement of the Earned Sick Time Act isn’t a multiple choice question – it’s the law – and it’s imperative to ensuring the healthy work culture that makes New York City a more desirable place to raise a family. The Department of Consumer and Worker Protection must do a better job of holding employers accountable and protecting our city’s workers.”

Comptroller Stringer’s audit of DCWP’s enforcement of ESTA found:

• Out of a sample of 31 ESTA cases, DCWP negotiated consent orders with 15 employers and obtained an administrative order against 1 additional employer that together required the 16 employers to pay restitution to 2,313 employees for ESTA violations, but the agency had no evidence that 38 percent of those employees—872 individuals—had ever received the restitution payments, totaling $202,972, to which they were entitled.
• The audit found no evidence that DCWP took any action to pursue the overdue payments.
• The agency did not impose late fees when employers failed to document the restitution payments even though those late fees were agreed to in DCWP’s consent orders.
• DCWP did not report the amounts of money employees actually received in the Mayor’s Management Report (MMR).
• DCWP failed to take timely actions on 28 of the sampled cases, some of which included significant time gaps in the investigative process.

Comptroller Stringer’s audit included a series of recommendations to ensure DCWP is fulfilling its mission of protecting the rights of all of the city’s workers, particularly by ensuring accurate record-keeping of payouts to employees. The recommendations included:

• DCWP should improve its tracking capacity by developing lists of restitution amounts ordered, paid, and past-due to employees for sick leave.
• DCWP should take additional steps to ensure employers are complying with ESTA if there is evidence that a fine has not been paid or an employee has not received a required payment, for example, by sending letters to employers and filing petitions with the Office of Administrative Trials and Hearings (OATH).
• DCWP should consider all available legal remedies if an employer does not comply with ESTA, such as referring the issue to the City Law Department for legal action.
• DCWP should develop methods that more effectively provide evidence that employers are complying with ESTA and employees have received the payments to which they are entitled.
• DCWP should enforce its negotiated late fees when employers fail to timely pay an employee the amount due.
• DCWP should collect and maintain sufficient supporting data and documentation and consider publicly reporting the number of employees for whom it secures sick leave payments—and the amounts they receive—in the MMR.

To read Comptroller Stringer’s audit of NYC DCWP’s enforcement of the ESTA, click here.