Petitioner proved that respondent violated the Earned Safe and Sick Time Act and Department rules by depriving an employee of the right to use earned paid sick time, failing to maintain written safe and sick time policies, and failing to provide an employee with notice of employee rights. Petitioner further proved that respondent did not maintain records for three years documenting compliance and failed to respond timely to the Department’s written request for information. ALJ recommends that respondent pay $500 in relief to a former employee and $2,550 in civil penalties. Petitioner, the Department of Consumer and Worker Protection (“Department”), brought this proceeding under New York City’s Earned Safe and Sick Time Act (“ESSTA”). Admin. Code §20-924(a), (c) (Lexis 2024); Charter §2203(e), (f), (h) (Lexis 2024); 6 RCNY §6-01(a) (Lexis 2024). Petitioner alleges that respondent, Tiffanie Gray, violated ESSTA and Department rules by failing to allow her employee use of earned paid sick time leave, maintain written safe and sick time policies, distribute a notice of employee rights, and maintain records and produce them in response to the Department’s written request for information in connection with an investigation (Pet. Ex. 8). The trial was originally scheduled for February 27, 2024, but respondent failed to appear, and the trial was adjourned (Pet. Ex. 15; Tr. 7, 33).1 On April 15, 2024, the adjourned date, respondent again failed to appear. Petitioner sought to proceed with the trial in respondent’s absence and submitted proof of service of the petition by attempted in-person service to respondent’s co-worker at respondent’s workplace, as well as by certified mail and regular mail at respondent’s residential and work addresses (Pet. Exs. 10, 16; Tr. 13-15). Petitioner represented that, during this investigation, the Department discovered that respondent had moved residences several times (Tr. 10-12). The Department’s investigator verified respondent’s work address and had corresponded with respondent and her secretary at a phone number associated with her work address (Tr. 7-9). Petitioner submitted proof of service of the notice of trial upon respondent by certified and regular mail at respondent’s work address (Tr. 7-9; Pet. Exs. 18-19). The notice of trial informed respondent that the trial would be held remotely and provided the necessary information to access the proceeding by phone or video (Pet. Ex. 18). I found that service was reasonably calculated to achieve actual notice to respondent and petitioner established the jurisdictional prerequisite for finding respondent in default. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950) (due process satisfied by “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”); see also Edan v. Johnson, 117 A.D.3d. 528, 529 (1st Dep’t 2014) (finding that serving a defendant at her place of business while she was out on maternity leave was proper because “the service of process at [her place of business] was reasonably calculated to afford her with notice of commencement of the action, since the receptionist could reasonably be expected to convey the message or papers to her, as the intended party”). The trial proceeded as an inquest. Petitioner submitted documentary evidence and testimony of two witnesses, a former employee and the Department’s investigator. For the following reasons, petitioner proved all the charges against respondent, and they are sustained. I recommend that respondent pay $500 in relief to a former employee and $2,550 in civil penalties. ANALYSIS An employer of a domestic worker shall provide paid safe and sick time leave to the employee in accordance with ESSTA provisions. Admin. Code §20-913(a)(1). An “employer” subject to ESSTA includes “any person…employing any individual in any occupation, industry, trade, business or service.” Labor Law §190(3) (Lexis 2024); see Admin. Code §20-912 (“Employer shall mean any employer as defined in subdivision (3) of section 190 of the labor law.”). A “domestic worker” includes “any person who provides care for a child,…housekeeping, or any other domestic service in a home or residence.” Admin. Code §20-912. “An employee shall be entitled to use sick time for absence from work due to: (a) such employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care.” Admin. Code §20-914(a)(1)(a). Curlyn Charles worked as a nanny caring for respondent’s two children (Tr. 35-36). At trial, she offered credible testimony that was, for the most part, logical and straightforward. See Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998) (in assessing witness credibility, relevant considerations include demeanor, consistency of testimony, supporting evidence, witness motivation, bias or prejudice, and whether testimony comports with common sense and human experience). She worked for respondent from September 14, 2020, until December 11, 2020 (“the relevant period”), at respondent’s home in Rego Park, Queens (Tr. 36; ALJ Ex. 1 at 1). On December 11, 2020, respondent moved to Connecticut and Ms. Charles continued to work for respondent in Connecticut until March 7, 2021 (Tr. 36-37). Ms. Charles testified that she worked from 7:00 a.m. to 6:00 p.m., Monday to Thursday, and 7:00 a.m. to approximately 3:00 p.m. on most Fridays. She estimated that she worked approximately 50 to 55 hours a week (Tr. 36-37). Respondent paid her weekly by Zelle, a bank-to-bank money transfer service. When she worked from Monday through Thursday, she was paid $800, and if she also worked the Friday, she was paid $900 (Tr. 37-38; Pet. Ex. 20). According to Ms. Charles’s Zelle payment records, during the relevant period, respondent paid her approximately $800 or $900 at the end of a workweek for 13 weeks (Pet. Ex. 20; Tr. 38). Ms. Charles testified that respondent did not provide a written handbook or policy guidelines at the start of her employment or give her written notice of employee rights to safe and sick leave (Tr. 39). There is no evidence that Ms. Charles inquired about paid sick leave during her employment. Ms. Charles recalled respondent telling her specifically that if she did not work, she will not get paid. Because she “wanted to get paid” and “had bills to pay,” she did not schedule doctor’s appointments during her work hours (Tr. 40, 44). At times, however, Ms. Charles needed to miss work because she was sick or had a doctor’s appointment. Respondent’s instruction about informing her of upcoming appointments was to tell her a couple of weeks in advance and then to remind her again a day or two before the appointment (Tr. 40). Ms. Charles recounted a specific incident that occurred when she had a doctor’s appointment scheduled after work hours on Friday, December 4, 2020. At first, she could not recall if the appointment was at 3:30 p.m. or 3:40 p.m., but she later clarified that it was at 3:30 p.m., and the doctor’s workday ended at 4:00 p.m. (Tr. 42-43). Ms. Charles had arranged in advance with respondent for respondent to be home by 1:00 p.m. that day as it would take her an hour and 45 minutes by public transportation to get to the doctor’s office in Brooklyn (Id.). Ms. Charles did not testify about whether respondent had planned to reduce her pay for that week because of the anticipated early departure from work on December 4. However, on that day, respondent did not return home by 1:00 p.m. Ms. Charles’s recollection about exactly what time respondent returned home was hazy, but she testified that she left respondent’s home at approximately 3:00 p.m., which is when she typically finished with work on a Friday. Instead of taking public transportation, she took an Uber to the doctor’s office and arrived at the office in 45 minutes. Nevertheless, Ms. Charles testified that she was late to her appointment. The doctor did not conduct a physical checkup as he usually would because he was ready to leave, but he ordered her bloodwork (Tr. 41, 43-44). The doctor wanted to schedule a follow-up appointment on the following Monday, December 7, but she could not make the appointment because she had to work (Tr. 41-42, 44). The next day, on December 8, the nurse called her to schedule another appointment (Tr. 42; Pet. Ex. 22). On August 24, 2022, Ms. Charles filed a complaint with the Department alleging that respondent, her former employer, violated ESSTA by not allowing her to use paid sick time while she was employed as a nanny in respondent’s Queens home (ALJ Ex. 1 at 2; Pet. Ex. 8 27; Tr. 20). Asia Dominguez works as a Paid Care Advocate at the Department’s Office of Labor Policy and Standards (“OLPS”) (Tr. 19-20). Her job duties are to receive and investigate complaints that mainly come from domestic workers (Tr. 20). She conducted an initial interview with Ms. Charles upon receiving this complaint. In the preliminary findings, she determined that respondent provided neither a written safe and sick time policy nor notice of employee rights, and Ms. Charles was not allowed to take sick leave, in violation of ESSTA and Department rules (Tr. 20-21). Ms. Dominguez drafted a “Notice of Complaint and Preliminary Findings,” dated October 27, 2022, to notify respondent of the complaint, the Department’s investigation, and the preliminary findings (Tr. 21-22; Pet. Ex. 1). The notice also instructed respondent, if she disagreed, to provide the Department by November 10, 2022, with specific documents as well as any other documentation in support of her position. For example, respondent was asked to provide “[a]ll leave policies (including any safe and sick leave policy) in effect at any time during the relevant time period, including disciplinary policies relating to absenteeism, lateness, attendance, and leaves of absence, and records showing the distribution method and date [Ms. Charles] received each such policy” (Pet. Ex. 1 at 2-3). Ms. Dominguez mailed the notice to respondent by certified and regular mail to respondent’s home address, in Riverside, Connecticut, which is the address Ms. Charles provided for respondent (Tr. 22-23; Pet. Ex. 2). She also sent a copy to respondent’s personal email address (Tr. 22; Pet. Ex. 1). She later learned of and verified respondent’s work address and sent a copy of the notice by certified mail to the work address, in Purchase, New York (Tr. 22-24; Pet. Ex. 3). Ms. Dominguez testified that respondent did not respond to the notice (Tr. 24). On February 17, 2023, Ms. Dominguez sent respondent a “Final Notice and Request for Documents,” with instructions to provide the Department, within 14 days, with records showing compliance with ESSTA and Department rules (Tr. 24; Pet. Ex. 4).2 As with the initial notice, the final notice provided detailed descriptions of the requested documents (Pet. Ex. 4). It also warned that the failure to cooperate with the investigation is a violation of ESSTA that could result in the imposition of fines, including civil penalties and other relief (Id.). It further advised that the failure to produce records “may result in a rebuttable presumption against [respondent] in a subsequent litigation” (Id.). Ms. Dominguez mailed copies of the final notice to respondent’s home and work addresses. Although she stated that copies were sent by certified and regular mail, the certificates of mailing show that the final notices were sent by certified mail only (Tr. 24-25; Pet. Exs. 5, 7). A copy was also sent to respondent’s work email (Tr. 24-25; Pet. Exs. 4, 6). Ms. Dominguez testified that respondent did not respond to the final notice nor provided the documents requested by the Department (Tr. 25-26). Ms. Dominguez referred the case to the OLPS litigation team, who filed this petition against respondent (Tr. 26; Pet. Ex. 8). Petitioner served respondent with the notices to appear at the scheduled conference on December 6, 2023, by certified mail and first-class mail at both her residence and workplace addresses (Pet. Exs. 11, 12; Tr. 28-29). The Department sent reminders for the conference by email and a phone call. Ms. Dominguez testified that respondent’s response to the Department’s reminder email was “[t]o basically stop contacting her” by email, phone, or written correspondence at her workplace (Tr. 29-30). Petitioner has the burden of proving the charges by a preponderance of the credible evidence. See Dep’t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), adopted, Comm’r Dec. (Nov. 2, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-33-SA (May 30, 2008). Preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.” Prince, Richardson on Evidence §3-206 (Lexis 2008). For the charges related to record-keeping, respondent’s failure to present any information or records creates a reasonable inference that the charges are true. See 6 RCNY §7-111(a) (“An employer’s failure to maintain, retain, or produce a record that is required to be maintained under the OLPS laws and rules that is relevant to a material fact alleged by the Office in a notice of violation…creates a reasonable inference that such fact is true, unless a rebuttable presumption or other adverse inference is provided by applicable law.”); see Dep’t of Consumer & Worker Protection v. Reteg Electric Inc., OATH Index No. 1186/20 at 11-12 (Mar. 29, 2021), adopted, Comm’r Dec. (Sept. 15, 2021) (employer’s failure to respond to the Department’s request for documents created a reasonable inference that the employer did not comply with the law). While the inference is rebuttable, respondent did not appear and thus did not present any evidence in rebuttal. Count One: Failure to Allow Use of Sick Time Petitioner charged respondent with failing to allow Ms. Charles to use earned paid sick time during the relevant period (Pet. Ex. 8 42). It contended that Ms. Charles worked over 50 hours a week for 13 weeks during this time and accrued over 17 hours of paid sick leave that she was entitled to use (ALJ Ex. 1 at 3). Employees’ safe or sick time will start to accrue from either their employment start date or the effective date of this local law on September 30, 2020, whichever is later. Admin. Code §§20-911, 20-913(d). With certain exceptions, an employee is “entitled to use safe/sick time as it is accrued.” Admin. Code §20-913(d). “All employers shall provide a minimum of one hour of safe/sick time for every thirty (30) hours worked by an employee,…[with no] more than a total of forty hours of safe/sick time for an employee in a calendar year….” Admin. Code §20-913(b). Ms. Charles’s Zelle records show payments from respondent. They indicate that from September 30, 2020, the effective date of this law, until December 11, 2020, respondent paid her for working either a four-day week (approximately 44 hours) or a five-day week (approximately 52 hours), for at least 10 weeks (Pet. Ex. 20 at 2-4; Tr. 36-38). Specifically, on four Fridays in October, respondent paid Ms. Charles the following amounts: $800 on October 9, 2020; $850 on October 16, 2020; $800 on October 23, 2020; and $900 on October 30, 2020 (Pet. Ex. 20 at 2). Thus, Ms. Charles would have accrued paid safe and sick time leave starting in October 2020. But respondent advised Ms. Charles at the beginning of her employment that she would not get paid if she did not work, and did not provide Ms. Charles with a notice of her right to paid sick leave. Because of respondent’s statement, Ms. Charles believed that if she wanted to get paid, she could not schedule doctor’s appointments that conflicted with her designated work hours. By telling Ms. Charles that she could not be paid unless she worked and failing to provide her with information about paid sick leave, respondent effectively deprived Ms. Charles of her right to use the accrued paid sick time to which she was entitled. See Admin. Code §20-924(d)(v) (prohibiting “[a]n employer’s official or unofficial policy or practice of not providing or refusing to allow the use of accrued safe/sick time”); see generally Dep’t of Consumer & Worker Protection v. Champion Security Services, Inc., OATH Index No. 2293/21 at 23 (Oct. 23, 2023), adopted, Comm’r Dec. (Jan. 5, 2024) (failing to notify employees of the accrued sick leave they were entitled to under ESSTA establishes that employees were not provided the ability to use paid sick leave in violation of section 20-913(d)); Dep’t of Consumer Affairs v. PCC Cleaning Services, Inc., OATH Index No. 088/18, mem. dec. at 14-15 (June 26, 2018) (noting that employees’ lack of notice about the right to paid sick leave and related information deprived them of ESSTA benefits). The preponderance of the credible evidence established this charge, and it is sustained.3 Counts Two and Three: Failure to Maintain Written Paid Safe and Sick Time Policies and Failure to Distribute a Notice of Employee Rights Petitioner charged respondent with failing to maintain written safe and sick time policies that meet or exceed the requirements of ESSTA and Department rules (Pet. Ex. 8
46-51). Petitioner further charged respondent with failing to provide her employee with written notice of employee rights to safe and sick time leave (Pet. Ex. 8
