Month: May, 2014

Is Mandatory Paid Sick Leave Going State-Wide?

Melanie D. Lipomanis

We recently posted concerning new ordinances enacted in two New Jersey cities, Newark and Jersey City, mandating that local employers provide paid sick time to their employees.  Now, the State Legislature is considering whether to extend mandatory paid sick time statewide.   

Senator Loretta Weinberg (D-Teaneck) and Assemblywoman Pamela Lampitt (D-Voorhees) announced their sponsorship of identical bills (S785/A2354) mandating that public and private employers provide employees with a minimum of paid sick leave.  The bills would allow employees to accrue one hour of paid sick leave for every 30 hours worked, irrespective of whether they are employed on a full or part-time basis. 

More generous than Newark’s paid sick leave ordinance, the pending bills would increase the annual accrual cap to forty hours per year for employers with nine or fewer employees, and seventy-two hours per year for employers with ten or more employees (as opposed to twenty-four and forty, respectively).  Although the bills include an annual rollover provision for accrual purposes, they do not require the employer to provide a greater number of paid sick hours than the specified caps in any given year.  Neither bill provides for payout of accrued but unused sick leave upon separation of employment. 

If either bill is enacted, existing employees would accrue paid sick leave retroactively beginning on January 1, 2014, and new employees will begin to accrue paid leave on the 90th day following their date of hire.  

The bills also provide that the paid sick leave may be taken by the employee for the diagnosis, care, treatment, or recovery from the employee’s own physical or mental illness or injury or other adverse health condition, and for preventative care, or to aid or care for a family member during the diagnosis, care, treatment, or recovery from a mental or physical illness of injury or other adverse health condition, and for preventative care. 

Paid sick leave also could be taken for medical attention, counseling, relocation or legal services in connection with domestic violence concerning either the employee or his or her family member.  The bills also would allow employees to use the paid sick leave for hours the employee is not able to work due to closure of his or her workplace or the school or place of care of a child. 

An employer could require up to seven days advance notice of the employee’s intent to use paid sick leave where feasible, as well as reasonable documentation that the leave is being used for a permissible purpose when the leave taken exceeds three or more days. 

The legislation provides a safe haven for employers who offer any other type of paid leave that may be used for the purposes enumerated, and which accrues at the same or greater rate.  Any paid leave meeting these requirements would be deemed compliant with the proposed law. 

Notably, the bills contain a broad anti-retaliation provision that would create a presumption of an unlawful retaliatory personnel action whenever an employee suffers an adverse employment action within 90 days of filing a complaint with the Department of Labor, informs any person of an employer’s violation of this law, or opposes any policy, practice or act of the employer that the employee has a good faith belief is in violation of this law. 

 An employer’s failure to comply with the proposed law would be considered a violation of the New Jersey State Wage and Hour Law and subject to the remedies, penalties, and other measures provided by that law in addition to civil actions. 

Even if these bills are not enacted, the press reports that State union leaders have vowed to continue their efforts in getting paid sick time laws, such as those in Jersey City and Newark, enacted in other New Jersey municipalities. 

[Press report]

“Sandy” Amendments Give Leave and Benefits Entitlement Credit to Workers Impacted by State of Emergency

David M. Alberts

On January 17, 2014, Governor Christie signed into law P.L. 2013, c. 221, which amends the New Jersey Family Leave Act, N.J.S.A. 34:11B-1, et seq. (“FLA”), and Security and Financial Empowerment Act, N.J.S.A. 34:11C-1, et seq. (“SAFE”), to ensure that workers do not lose eligibility for leave under those statutes due to loss of employment during a natural disaster or other emergency.  Under both the FLA and SAFE, employees do not qualify for leave unless they have been “employed for at least 12 months by an employer…for not less than 1,000 base hours during the immediately preceding 12-month period.” N.J.S.A. 34:11B-3; N.J.S.A. 34:11C-2.  The amendments provide that any time during which an employee is laid off or furloughed due to a “state of emergency” – up to a maximum of 90 days – shall count towards the 12-month and 1,000-hour requirements.  “State of emergency” is defined as any “natural or man-made disaster or emergency for which a state of emergency has been declared by the President of the United States or the Governor, or for which a state of emergency has been declared by a municipal emergency management coordinator.”

P.L. 2013, c. 221 similarly amends the eligibility provisions for temporary disability benefits and family leave insurance benefits – both of which require 20 “base weeks” of work during the preceding year – to provide that any time during which an employee is laid off or furloughed due to a “state of emergency” (up to a maximum of 13 weeks) shall count towards the “base week” requirement.