New Jersey Passes Mandatory Paid Sick Leave

On May 2, New Jersey Governor Phil Murphy signed a law mandating all private and public New Jersey employers, regardless of size, offer paid sick leave. This makes New Jersey the 10th state to adopt mandatory paid sick leave legislation. The Paid Sick Leave Act (“the Act”) also permits employees to use the leave for their own care or for the care of a family member and expands how paid sick leave can be used, encompassing protections beyond the federal Family Leave and Medical Act, the New Jersey Family Leave Act as well as other leave laws. The new law also fully pre-empts the 13 municipalities in New Jersey with local paid sick leave ordinances, allowing employers to adopt a state-wide uniform paid sick leave policy.

Coverage

Permissible use of sick leave includes the following:

(i) Diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury;

(ii) Absence due to a public health emergency declared by a public official that causes the closure of the employee’s workplace or the school or childcare facility of the employee’s child or requires the employee or an employee’s family member to seek care;

(iii) A necessary absence for medical, legal or other victim services because of domestic or sexual violence perpetrated on the employee or the employee’s family member; or

(iv) To attend a school-conferences, meetings, or any event requested or required by a child’s school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding a child’s health or disability.

The Act also broadly defines “family members” to include an employee’s child, spouse, domestic partner, civil union partner, parent (including adoptive, foster or step-parent, or legal guardian), sibling (including foster or adoptive siblings), grandparent or grandchild, and the parent, grandparent or sibling of the employee’s spouse, domestic partner or civil union partner. Notably, an employee has the opportunity to use their sick leave for the care of a non-related individual whose close association with the employee is the “equivalent” of a family relationship.

Exemptions & Employees Covered by a CBA

Per diem healthcare employees, construction workers subject to a collective bargaining agreement (CBA), and public employees who are provided with sick leave with full payment pursuant to any other law, rule or regulation are exempt from the new law. Non-construction employees covered by a CBA at the time the law goes into effect are also not effect, but will apply once the agreement expires. Further, employees and their representatives may waive the rights available under the law and address paid leave in collective bargaining.

Accrual of Paid Sick Leave

Under the new law, employees accrue 1 hour of paid sick leave for every 30 hours worked. Employees may accrue up to 40 hours of paid sick leave per benefit year.  Employers are also permitted to designate the “benefit year” as any 12-month period but may not modify it without notifying the New Jersey Department of Labor and Workforce Development (NJDOL).

Employees become eligible to use earned sick leave beginning on the 120th day after they are hired, and may use their earned sick leave as it is accrued. Employers are also permitted to offer, or “frontload” 40 hours of paid sick time or utilize a paid-time-off (“PTO”) policy as long as it provides equal or greater benefits and accrue benefits at an equal or greater rate than the benefits provided under the Act. There is no requirement to payout accrued and unused sick leave upon termination absent a company policy to the contrary.

Upon the mutual consent of the employee and employer, an employee may voluntarily choose to work additional hours or shifts during the same or following pay period, in lieu of hours or shifts missed, but shall not be required to work additional hours or shifts or use accrued earned sick leave. In addition, an employer may not require, as a condition of an employee’s using earned sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using earned sick leave.

Notice

Employers are entitled to 7 days advance notice of “foreseeable” absences and can restrict employee’s use of “foreseeable” paid sick leave on certain dates.  Where the need is unforeseeable, an employer may only require notice “as soon as practicable,” if the employer has notified the employee of this requirement.  In addition, employers are only permitted to ask the employee for documentation to substantiate the sick leave if the employee is absent for 3 or more consecutive days.

Compliance

Employers will be required to maintain records documenting the hours worked and earned sick leave used by employees. Records must be maintained for 5 years and made available for inspection by the NJDOL. If an employee claims an employer violated the Act, and that employer that has failed to maintain adequate records, then there is a presumption that the employer failed to provide paid sick leave.

Employers must also post a notification and distribute a written notification alerting employees of their rights within 30 days of the notice being issued by the NJDOL and provide the notification to all new employees at the time of hiring.

Anti-Retaliation

Employers are prohibited from retaliating or discriminating against employees under the Act. The Act broadly defines retaliation to include not only retaliatory personnel action like suspension, demotion, or refusal to promote, but also includes threatening to report the immigrant status of an employee or family member of the employee. Employers are also prohibited from retaliating or discriminating against an employee who files a complaint with the commissioner or a court alleging the employer’s violation of the Act, or informs any other person of their rights under the Act.

There is a rebuttable presumption of unlawful retaliatory action whenever an employer takes adverse action against an employee within 90 days of when that employee opposes any violation of the Act, informs any person about the employer’s alleged violation of the Act, files a complaint alleging a violation of the Act, or cooperates in an investigation into an alleged violation of the Act.

Penalties

Any failure of an employer to make available or pay earned sick leave as required by the new law, or any other violation of the law, shall be regarded as a failure to meet the wage payment requirements of the New Jersey Wage and Hour Law.  Employers will also be subject to the penalties and remedies contained in the New Jersey Wage and Hour Law, including fines and possible imprisonment, reinstatement of a discharged employee to correct any discriminatory action and payment of all lost wages in full.

Bottom Line

The New Jersey Paid Sick Leave Act takes effect in 180 days, on October 29, 2018. Employers in New Jersey, in consultation with legal counsel, must review and revise existing policies, practices and procedures related to calculating employee’s sick leave to ensure compliance with the Act.  Human Resources and Benefits personnel should also be trained on the new paid sick leave law requirements and Managers should also receive updated training to ensure that internal recordkeeping processes are sufficient to keep track of time taken under the new law.

For more information about the potential impacts of the Paid Sick Leave Act or what steps your company can take to effectively ensure compliance with wage and hour laws, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Potential Relief on the Horizon for Business Owners as New Jersey Legislature Considers Controversial Revision To Proposed Statewide Sick Leave Law

A new version of the proposed statewide New Jersey sick leave law, sponsored by Assemblywoman Pamela Lampitt (D-Voorhees) as well as other Democrats in the Assembly may potentially include a controversial amendment that would make the bill more palatable to businesses. The revised bill could come with an amendment that would pre-empt local governments from adding to any statewide sick leave requirements that would be enacted. NJBIZ is reporting that the revised bill – with such a pre-emption — could resurface by the end of this month.

As it currently stands, the proposed statewide bill allows full-time and part-time employees to earn one hour of paid sick time for every 30 hours worked. Employees at businesses with ten or more employees would have a 72-hour-per-year cap, while employees at businesses with nine or fewer employees would have their paid sick hours per year capped at 40. In its current form, the bill allows New Jersey municipalities to adopt their own local paid sick leave ordinances, as long as those ordinances were in compliance with the statewide law. Nine municipalities have already passed their own paid sick leave ordinances: Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Montclair, Trenton and Bloomfield.

Business groups widely support an amendment to the state bill that would pre-empt all local ordinances. The amendment would allow businesses to create a uniform plan for compliance with the state law, rather than adjusting paid sick leave policies in municipalities that have their own, more expansive paid sick leave laws. In interviews with NJBIZ, leaders from the New Jersey Chamber of Commerce and the New Jersey Business & Industry Association expressed disapproval of the idea of a statewide paid sick leave law, but acknowledged that amendments to the bill that would ease the burden on businesses would be welcome. Conversely, representatives from employee advocacy groups New Jersey Citizen Action and New Jersey Working Families informed NJBIZ that an amendment with local pre-emption would be an unwelcome addition to the statewide bill.

The Statewide bill’s sponsor in the Senate, Sen. Loretta Weinberg (D-Teaneck), seemed open to discussion, stating, “I am working with the Assembly sponsors to advance this measure and discussing the potential for amendments to the legislation.”

For more information regarding this proposed bill and to learn how your business can implement best practices when dealing with paid sick leave laws, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@nullgenovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

N.J. Business Groups Vow To Fight Paid Sick Leave Law in Trenton

A group of six business organizations—including the New Jersey Business & Industry Association and the New Jersey State Chamber of Commerce—has filed a lawsuit against the City of Trenton, New Jersey, demanding the delay of a voter-approved measure requiring Trenton employers to provide their workers with paid sick leave.

The coalition is asking the Mercer County Superior Court to overturn the measure, arguing that it is unconstitutional, and preempted by state statutes.  The Ordinance, No. 14-45, become law on Wednesday, March 6th –120 days after 5,989 Trenton voters approved the measure in a November 2014 referendum.

In its papers, the coalition argues that the City lacks legal authority to implement the Ordinance.  More specifically, the group contends that the measure is a direct violation of the police powers granted to municipalities, which are subject to constitutional limits. In addition, the measure “substantially impairs” employer-employee contracts, in violation of the Contract Clause.  The group further argues that the city is over-stepping its powers and cannot reach beyond its municipal boundaries to require employers located outside of Trenton to provide paid sick leave for employees who work at least 80 hours a year in the City.  Christopher Gibson, the attorney for the group, said “Trenton’s mandatory paid sick leave ordinance is vague, ambiguous and contrary to New Jersey law and impossible to interpret, administer or implement.”

Notably, Trenton’s law is modeled after a similar ordinance successfully implemented in Newark. The Newark law requires employers with 10 or more workers to provide up to 40 hours—accruing one hour for every 30 hours worked – of paid sick time annually. Employers with fewer than 10 workers only have to provide up to 24 hours of paid sick time. Those in the child care, home health care and food service industries are required to provide the full 40 hours regardless of their size.

The referendum forced Trenton to join eight other municipalities within the state to pass such a measure. Over the past two years, local legislators in Jersey City, Newark, Passaic, East Orange, Paterson, Irvington and Montclair have passed their own versions of this ordinance. Earlier this month, Bloomfield joined the movement and passed its own paid sick leave law. Montclair, whose referendum was approved in November along with Trenton, also ushered in paid sick leave Ordinance on March 4th.  Notably, a State Assembly panel passed a statewide version of the bill in December.

For questions related to Trenton’s paid sick time ordinance, or compliance with your local paid sick leave laws, please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at dmastellone@nullgenovaburns.com, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at eaddison@nullgenovaburns.com.

Philadelphia Signs Paid Sick Leave Law

Yesterday, Philadelphia Mayor Michael Nutter signed mandatory paid sick leave into law, a law that is expected to benefit up to 200,000 Philadelphians.

Taking effect in just 90 days – or no later than May 13, 2015 – the Promoting Healthy Family in the Workplace Law will require businesses within the City of Philadelphia with 10 or more employees to provide workers with at least one hour of paid sick leave for every 40 hours worked – approximately five days per year.  Sick time may be used for an employee’s health care, the care of a family member, and time needed to seek support in dealing with domestic violence or sexual assault.

The new law also creates exceptions for independent contractors, seasonal workers or those hired for fewer than six months, adjunct professors, interns and government employees.  The law also specifically exempts unionized workers working under collective-bargaining agreements, due to the powerful building trades unions in the city opposed having unions included.  Failure to comply can result in fines, penalties, and restitution.

The law intended to be the minimum requirement, allowing businesses to implement more generous benefits for their employees.  Businesses that already provide sick pay meeting or exceeding the law’s requirements need not change their policies. Employers that violate the ordinance will be subject to fines, penalties, and restitution.  An employer who wilfully violates the notice and positing requirements of the new law are also subject to a civil fine in an amount not to exceed $100 for each separate offense.

Seven years after the initial push by Councilman William K. Greenlee, Philadelphia finally joined the coalition of 16 cities and three states which have similar laws in its books. Mayor Nutter previously vetoed similar bills in 2011 and 2013, citing concerns about the economic recession.  Passage of the law makes Philadelphia the 17th city in the US to mandate paid sick leave, and it is the second largest city in the country after New York City to do so. During his recent State of the Union address, President Obama called on Congress to pass federal-sick leave legislation.

In New Jersey, a number of Municipalities have enacted similar laws, and a bill is currently pending in the state Assembly that would expand the initiative state wide. In its current form, the N.J. bill would require employers with fewer than 10 employees to offer at least 40 hours of sick time per year, while businesses with more than 10 employees would have to offer at least 72 hours of paid sick time per year.

For questions related to Philadelphia’s paid sick time ordinance, or compliance with your local paid sick leave laws, please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at dmastellone@nullgenovaburns.com, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at eaddison@nullgenovaburns.com.

Obama Continues to Push For Federal Sick Leave

During his 2015 State of the Union address, President Obama continued his push for a mandatory paid sick leave law by calling on Congress to act and send him a bill.

The White House first announced its plans last week in a post published on LinkedIn.  Stating that the United States’ failure to require employers to provide paid family is “shameful,” Senior White House Adviser Valerie Jarrett advised that the President would call on Congress to require companies to give workers up to seven days of paid sick leave a year. The proposal, called the “Healthy Families Act,” would allow employees to earn a minimum of seven paid sick days per year.

In addition to pushing Congress to act, President Obama followed up on a promise made during his 2014 State of the Union address by signing a presidential memorandum (a tool similar to an executive order used to direct federal agencies to implement a White House policy), giving federal employees access to six weeks of paid parental leave by allowing new parents to advance their sick time.  While the Family Medical Leave Act (“FMLA”) already provides workers with the ability to take time off to care for their own health or that of certain family members, the leave is unpaid.

In order to promote change and action in the state level, the President has proposed $2.2 billion in new funds in the 2016 budget to encourage states to adopt their own paid leave programs. In New Jersey, a bill that would require paid sick time for all employees, including part-timers, was advanced by state legislators in December. In its current form, the NJ bill would require employers with fewer than 10 employees to offer at least 40 hours of sick time per year, while businesses with more than 10 employees would have to offer at least 72 hours of paid sick time per year.

For questions related to this legislation or compliance with local paid sick time laws,please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at dmastellone@nullgenovaburns.com, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at eaddison@nullgenovaburns.com.

N.J. Bill Requiring Paid Sick Time for All Employees Moves Forward

Last week, an ambitious bill that would require all employers in New Jersey to offer paid sick days to employees was approved by the Assembly Labor Committee, clearing its first hurdle in the Legislative process. Assembly Bill No. 2354, sponsored by Assemblywoman Pamela R. Lampitt, District 6 (Burlington and Camden) and  Assemblyman Raj Mukherji, District 33 (Hudson), would require New Jersey businesses with 10 or more employees to provide up to 72 hours of paid sick time, equal to nine full days, while employers with fewer than 10 employees must provide up to 40 hours, equal to five full days, each benefit year. The bill sets only a minimum guarantee, but employers would be allowed to provide more generous sick-leave benefits.

Each employee would earn one hour of paid sick time for every 30 hours worked.  Sick time may be used for an employee’s health care, the care of a family member, the closure of the employee’s place of business due to a public health emergency, to care for a child whose school is closed due to a public health emergency, and time needed to deal with either being the victim of, or having a family member who is, the victim of domestic violence.  The Bill also creates an exception for employees covered by a Collective Bargaining Agreement.

First introduced in February of this year, this Bill comes at a time where numerous municipalities throughout the State have already enacted its own versions of the proposed paid sick time regulation. Mandatory paid sick time laws are already in effect in six New Jersey cities: Newark, Jersey City, East Orange, Paterson, Passaic and Irvington.  Residents of Trenton and Montclair will vote for the passage of their own earned sick leave law in Tuesday’s election.  Only Connecticut and California have statewide legislation currently in place.

For more information on this Bill and compliance with paid sick time laws, please contact Dina M. Mastellone, Esq., Counsel in the Human Resource and Employment Law & Litigation Practice Groups at dmastellone@nullgenovaburns.com