Key points
- New York State Labor Law § 215 bars an employer, or any other person, from discharging, threatening, penalizing or otherwise retaliating against an employee who complained about conduct the employee reasonably and in good faith believes violates the Labor Law.[1]
- A complaint to the employer itself counts, and it does not have to mention any section of the Labor Law.[1][2]
- Under § 215, retaliation includes threatening to contact immigration authorities and assessing attendance points for a legally protected absence.[3][4]
- An employee may sue within two years; a court may order reinstatement or front pay, lost compensation, attorneys' fees, and liquidated damages of not more than $20,000.[5]
- The employee has to serve notice of the lawsuit on the Attorney General at or before starting it, and § 215 does not apply to employees of the State or its municipal subdivisions.[6][7]
In New York, an employer may not punish a worker for complaining about pay, hours or any other suspected violation of the State Labor Law. Labor Law § 215 says no employer, agent, corporate officer "or any other person" shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against an employee because the employee complained about conduct the employee reasonably and in good faith believes violates the Labor Law.[1] The complaint can be made to the boss, and it does not need to cite the law.[1][2]
This page covers the State statute. The federal Fair Labor Standards Act has its own retaliation clause, set out at the end, and retaliation for complaining about discrimination or harassment is a different body of law, explained in what is workplace retaliation.
What does Labor Law § 215 protect?
Under § 215(1)(a), a New York employee is protected against retaliation because:[1]
- the employee made a complaint to the employer, to the Labor Commissioner or the Commissioner's representative, to the Attorney General, or to any other person, that the employer engaged in conduct the employee reasonably and in good faith believes violates any provision of the Labor Law or any order of the Commissioner;[1]
- the employer, or the person who retaliates, believes the employee made such a complaint;[1]
- the employee started, or is about to start, a proceeding under or related to the Labor Law;[1]
- the employee gave information to the Commissioner or the Attorney General;[1]
- the employee testified, or is about to testify, in an investigation or proceeding under the Labor Law;[1]
- the employee otherwise exercised rights protected under the Labor Law;[1]
- the employer received an adverse determination from the Commissioner involving the employee; or[1]
- the employee used any legally protected absence under federal, local or state law.[4]
Three features of that list matter in practice.
Internal complaints count. The first item names a complaint "to his or her employer" before it names any government office.[1] Whether a complaint has to go to HR first under anti-discrimination law is a separate question, covered in do I have to report to HR first.
No legal vocabulary is needed. The statute says an employee complaint or other communication "need not make explicit reference to any section or provision of this chapter to trigger the protections of this section."[2]
The test is reasonable, good-faith belief. The protected complaint is one about conduct the employee "reasonably and in good faith" believes violates the Labor Law.[1] The second item goes further and protects an employee the employer merely believes has complained.[1]
Is § 215 only about wages?
No. The section refers to a violation of "any provision of this chapter," meaning the Labor Law, or of any order issued by the Commissioner.[1] Other parts of the Labor Law point back to it. The State sick leave statute, Labor Law § 196-b, bars retaliation for requesting or using sick leave or paid prenatal leave "consistent with the provisions of section two hundred fifteen."[8] The Labor Law also contains the rule that no employer may prohibit employees from discussing wages, covered in talking with coworkers about pay.[9]
A report of illegality that has nothing to do with the Labor Law falls under a different State statute, Labor Law § 740, which protects disclosure of an activity the employee reasonably believes violates a law, rule or regulation.[10]
What counts as retaliation under § 215?
The core words are to "discharge, threaten, penalize, or in any other manner discriminate or retaliate."[1] The statute then names two specific forms.
Immigration-related threats
Under § 215, to threaten, penalize, discriminate or retaliate includes threatening to contact or contacting United States immigration authorities, or otherwise reporting or threatening to report the suspected citizenship or immigration status of the employee, or of the employee's family or household member, to a federal, state or local agency.[3] Section 215 was amended on this subject by chapter 126 of the Laws of 2019, signed July 27, 2019.[3] More detail is in immigration status threats as retaliation and undocumented and immigrant workers' rights.
Attendance points for protected absences
Section 215 also defines retaliation to include "assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action," including failure to receive a promotion or loss of pay.[4] Read with the protection for using "any legally protected absence pursuant to federal, local, or state law," the text covers points assessed because an employee used a legally protected absence.[4] The change was enacted as chapter 604 of the Laws of 2022, signed November 21, 2022, and took effect on the ninetieth day after it became law.[4] Which absences are legally protected is the subject of retaliation for taking leave or filing a workers' compensation claim.
Who can be held responsible, and who is left out?
Section 215 is not limited to the employing company. It applies to an employer or its agent, the officer or agent of a corporation, partnership or limited liability company, "or any other person."[1] A civil action may be brought against "any employer or persons alleged to have violated" the section.[5]
The main exclusion is government employment. The section does not apply to employees of the State or any municipal subdivisions or departments of the State.[7] Those workers should read public employee whistleblowers: Civil Service Law § 75-b.
Two ways to enforce § 215
The statute offers an administrative route through the State Department of Labor and a lawsuit in court. Neither depends on the other: an investigation by the Commissioner is not a prerequisite to, nor a bar against, a civil action.[5]
| Complaint to the Labor Commissioner (New York State) | Civil action in court (New York State law) | |
|---|---|---|
| Who acts | The Commissioner investigates and, on finding a violation, may issue an order.[11] | The employee sues the employer or other persons alleged to have violated the section.[5] |
| Time limit | The section states the time limit for the civil action; filing with the Commissioner tolls it.[5] | Within two years after the violation, regardless of the dates of employment.[5] |
| Liquidated damages | The Commissioner may order liquidated damages of up to $20,000 per aggrieved employee.[11] | Not more than $20,000; the court "shall" award them to every aggrieved employee in addition to other remedies.[5] |
| Job and pay relief | Reinstatement, lost compensation or front pay, and injunctive relief.[11] | Rehiring or reinstatement with restored seniority, or front pay instead; lost compensation and damages; costs and reasonable attorneys' fees; an injunction.[5] |
| Penalty on the employer | A civil penalty of $1,000 to $10,000, or up to $20,000 if the employer violated § 215 in the preceding six years.[11] | Separately, violating § 215(1) is a class B misdemeanor.[7] |
The two-year clock and tolling
The two-year period for a court action stops running from the date the employee files a complaint with the Commissioner, or the Commissioner begins an investigation, whichever is earlier.[5] It starts again when an order to comply becomes final or, if no order is issued, on the date the Commissioner notifies the complainant that the investigation has concluded.[5] A side-by-side list of the time limits under every retaliation statute is in retaliation deadlines compared.
Notice to the Attorney General
Section 215(2)(b) says that at or before the commencement of any action under the section, notice of it "shall be served upon the attorney general by the employee."[6] The statute does not say what happens if the notice is missed, and this guide does not state how courts treat that.[6] It is a step to raise with whoever is filing the case.
The federal counterpart
Federal wage law has its own rule. Under the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), it is unlawful to discharge or in any other manner discriminate against an employee because the employee filed a complaint, started a proceeding, or testified or is about to testify under that Act.[12] The matching section numbers are a coincidence; the federal and State statutes are separate laws.
Keeping a record
Dates matter under § 215: the two-year period for a civil action is measured from the violation.[5] It helps to write down when and to whom you raised the pay problem, in what words, and what changed afterward (schedule, hours, write-ups, attendance points). General guidance on records is in documenting workplace problems, and how timing is weighed is in proving retaliation.
Common questions
I only complained to my manager about unpaid overtime. Is that protected in New York?
Under New York State Labor Law § 215, a complaint made to the employer is protected in the same way as a complaint to the Labor Commissioner, the Attorney General or any other person, as long as it concerns conduct the employee reasonably and in good faith believes violates the Labor Law.[1] The statute adds that the complaint need not make explicit reference to any section or provision of the Labor Law.[2]
How long do I have to bring a § 215 retaliation claim?
Section 215 lets an employee bring a civil action within two years after the violation.[5] The two years are tolled from the date the employee files a complaint with the Labor Commissioner, or the Commissioner starts an investigation, whichever is earlier, until an order to comply becomes final or the Commissioner notifies the complainant that the investigation has concluded.[5]
Do I have to file with the Department of Labor before suing?
No. The New York statute says an investigation by the Commissioner is neither a prerequisite to, nor a bar against, bringing a civil action under § 215.[5] What the statute does call for is notice: at or before the start of the action, the employee serves notice of it on the Attorney General.[6]
Is the liquidated damages figure under § 215 $10,000 or $20,000?
Under the current New York State text, liquidated damages are calculated as an amount not more than $20,000, and the court is directed to award them to every aggrieved employee in addition to other remedies.[5] The $1,000 to $10,000 figure is the range of the separate civil penalty the Labor Commissioner may assess, which rises to a maximum of $20,000 for an employer that violated § 215 in the preceding six years.[11]
Can my employer give me attendance points for using sick leave?
Section 215 of the New York Labor Law lists using any legally protected absence under federal, local or state law as protected, and defines retaliation to include assessing any demerit, occurrence or other point, or deduction from an allotted bank of time, that subjects or could subject the employee to disciplinary action.[4] That language came from chapter 604 of the Laws of 2022, signed November 21, 2022, and effective on the ninetieth day after it became law.[4]
Does § 215 protect city or state employees?
No. Section 215(1)(c) says the section does not apply to employees of the State or any municipal subdivisions or departments of the State.[7] Government workers look to other New York State statutes, including Civil Service Law § 75-b for disclosures to a governmental body.[13]
Sources
- N.Y. Lab. Law § 215(1)(a)(i)–(vii) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(a); L. 2019, ch. 126 (S.5791/A.5501), signed 27 July 2019 — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(a)(viii) and third unnumbered paragraph; L. 2022, ch. 604 (A.8092-B/S.1958-A), signed 21 Nov. 2022, effective the ninetieth day after becoming law — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(2)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(2)(b) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(c), (3) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 196-b(7) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 194(4)(a)–(d) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(2)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(b) — New York State Senate, Laws of New York
- 29 U.S.C. § 215(a)(3) — Legal Information Institute, Cornell Law School
- N.Y. Civ. Serv. Law § 75-b(2)(a) — New York State Senate, Laws of New York