Plainfield Becomes New Jersey’s 12th Municipality to Require Paid Sick Leave

On March 14, 2016, the City of Plainfield became the 12th municipality in New Jersey to require private sector employers to provide paid sick leave to their employees. The paid sick leave, which ranges from 24 to 40 hours a year, can be used by employees for their own illness, to care for an ill family member, or to care for a child in the event of certain school closures.  The law will take effect on July 12, 2016.

Amount of Sick Leave

Plainfield’s Sick Leave Law sets forth different obligations for small and large employers.  Small employers, or those with less than 10 employees, must give a maximum of 24 hours of paid sick leave per year.  Large employers, or those with 10 or more employees, must provide a maximum of 40 hours of paid sick leave per year.  All employees accrue 1 hour of paid sick leave for every 30 hours worked each calendar year. Exceptions apply to child care, home health care, and food service workers, who are entitled to accrue a maximum of 40 hours of paid sick leave, despite the size of their employer.

Plainfield’s Paid Sick Leave Law entitles employees to carry over a maximum of 40 hours of paid sick leave from year to year.  Despite this carry-over provision, an employer can limit the use of paid sick leave to just 40 hours a year.  The Paid Sick Leave Law also contains two other significant provisions.  First, if an employer already offers a paid time off policy that is just as generous as the new law, an employer need not provide additional leave.  Second, the Paid Sick Leave Law does not require employers to pay employees for unused sick time upon termination of employment.

Eligibility For Paid Sick Leave

An employee must work 80 hours in a year to be eligible for paid sick leave.  As to employer size, which dictates the amount of sick leave an employee can accrue (either 24 or 40 hours), an employer must count all employees performing work for compensation on a full-time, part-time, or temporary basis. Employers with more than 10 employees, in total, will be considered a large employer. Those employers with a fluctuating number of employees should use the average number of employees employed during the preceding calendar year to determine size.

Use of Paid Sick Leave

Employees in Plainfield can use paid sick leave to care for themselves or a family member with a mental or physical illness, injury or health condition.  This care includes time off for medical diagnosis, treatment, or preventative medical care for a condition.  It may also be used for the closure of the employee’s place of work, or the employee’s child’s school or place of care, due to a public health emergency or to care for a family member who has been exposed to a communicable disease. An employee may use paid sick leave in increments as small as the employer’s payroll system uses to account for other absences.

If an employee seeks to use sick time, and the need for the use is foreseeable, an employer may require seven days advance notice from the employee.  If the need for paid sick leave is unforeseeable, an employer may require notice before the beginning of the employees’ shift, or in emergent circumstances, as soon as practicable.  After an absence, an employer may also require the employee to submit written confirmation that the time used was in fact used for the purposes authorized under the Paid Sick Leave Law.  Further, after three consecutive days or instances of sick leave, the employer may require documentation from a healthcare provider to confirm that the employee’s absence was necessary; the employer must not require details of the health condition or the nature of the illness.

Notice and Posting Requirements

Plainfield employers must provide written notice (available on the City’s website) to employees explaining their rights upon hire or, for current employees, as soon as practicable after July 12, 2016. Employers must also post the notice a conspicuous and accessible location at the work place.  The notices must be in English and in any language that is the first language of at least 10% of the employer’s workforce.

Fines and Penalties

Penalties include a fine not exceeding $750 for each day of the violation, and restitution in the amount of any paid sick time unlawfully withheld.  The Paid Sick Leave Law also prohibits employers from retaliating against any employee for taking leave or for interfering with the employee’s rights in connection with that law.

For more information regarding implementing Plainfield’s paid sick leave or how our business can develop a compliant paid sick leave policy, please Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777 or Nicole M. Amato, Esq., Associate, in the firm’s Human Resources Practices Group at nmamato@nullgenovaburns.com.

New Brunswick Now Requires Paid Sick & Safe Leave for Employees

On December 17, 2015, the City of New Brunswick joined the growing list of municipalities in New Jersey requiring private sector employers to provide paid sick leave to employees.  The new law, effective January 6, 2016, also adds safe leave for domestic violence which is uncharacteristic of ordinances previously enacted by other municipalities in New Jersey.

Accrual of Paid Sick and Safe Leave:

Employees will now accrue one hour of paid sick or safe time for every 35 hours actually worked within the City of New Brunswick.  For employers with 10 or more full-time equivalent employees, full-time employees can accrue up to 40 hours of paid sick and safe leave in a calendar year. Employers with 10 or more employees are required to provide part-time employees with up to 24 hours of paid sick leave in a calendar year. For purposes of the Ordinance, an employee who averages 35 hours per week of work time is considered to be “full-time” and an employee who averages between 20 hours and 35 hours per week is considered to be “part-time.”  Employers with fewer than 10 employees are required to provide employees with up to 24 hours of paid sick leave in a calendar year.

Employees, however, must wait until May 5, 2016 (or 120 days after they started work, if hired after January 6, 2015) to start using their accrued paid leave.  Employers must allow unused paid sick or safe time to be carried over to the following calendar year.

Individuals working from home, working per diem, temporary hospital employees and individuals defined as an independent contractor are not subject to the provisions of this Ordinance.  The Ordinance also does not apply to employees covered by a collective bargaining agreement,  to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.

Qualifications for Sick and Safe Leave

Employees are entitled to use sick leave for their own mental or physical illness, injury, or health condition, need for medical diagnosis or treatment, or need for preventative medical care,  the care of a family member, or instances necessitated by a public health emergency.  Safe leave is also available to enable employees to obtain, or assist a family member, to obtain legal, medical or other assistance related to an incident of domestic violence, sexual assault, or stalking.

Where the need to use paid sick or safe time is foreseeable, an employer may require reasonable advance notice of the intention to use paid sick or safe time.  The Ordinance also permits employers to request “reasonable documentation” evidencing the need for sick or safe time.  For safe leave, “reasonable documentation” may include a police report, court order, documentation that the employee or the employee’s family member is experiencing domestic violence, sexual assault, or stalking, or an employee’s written statement.

The Ordinance also includes specific provisions for employees of “eating and/or drinking establishment[s]” which allows the employer to request “reasonable documentation” to substantiate the use of time under the Ordinance on certain federal and other recognized holidays.

Notice and Posting Requirements:

New Brunswick employers must also provide written notice (available on the City’s website) to employees explaining their rights upon hire or, for current employees, as soon as practicable after January 6, 2016. Employers must also post that same notice to inform employees of their rights under the Ordinance in a conspicuous and accessible location.  The poster shall also be in English and in any language that is the first language of at least 10% of the employer’s workforce.

Fines and Penalties

Penalties for non-compliance range from $100.00 to $2,000.00.  An employer will also be subject to payment of restitution in the amount of any paid sick and safe time unlawfully withheld. The Ordinance also includes a provision prohibiting an employer from retailing against an employee for taking leave or for interfering with, restraining or denying any rights guaranteed by the Ordinance.

For more information regarding implementing New Brunswick’s sick and safe leave requirements or how our business can develop a compliant paid sick leave policy, please Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777 or Nicole M. Amato, Esq., Associate, in the firm’s Human Resources Practices Group at nmamato@nullgenovaburns.com.

NYC To Provide Municipal Employees With Six Weeks of Paid Maternity, Paternity, Adoption And Foster-Care Leave As of January 1, 2016

On December 22, 2015, New York City Mayor Bill de Blasio announced that he will sign an Executive Order granting municipal managers and non-unionized workers up to 6 weeks of paid maternity, paternity, adoption and foster-care leaves.  Starting on January 1, 2016, New York City employees are eligible to take the 6 weeks of paid leave at 100 percent of salary and it can also be combined with accrued sick leave and/or accrued vacation – so that employees will be able to take up to 12 weeks maternity, paternity, adoption, or foster care leave without losing pay.

To cover the $15 million cost, all non-union employees will see their vacation time reduced by two days, from 27 to 25 and the City will be repurposing the existing managerial raise of 0.47 percent scheduled for July 2017. The City’s unionized workers are not covered, unless a deal is reached with their representatives through collective bargaining. The new policy puts New York City at the forefront of city and state policies around the country.  New York City joins Portland, San Francisco and Cincinnati which have also recently approved paid parental leave policies.  In the private sector, companies such as Facebook, Amazon, Apple, Twitter and Netflix have also joined the growing trend to provide workers with paid paternal leave.

For more information regarding how your business can implement paid sick leave, please Dina M. Mastellone, Esq., Director 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.

Important Deadline Approaching Under New York City’s Paid Sick Leave Law

By Thursday, May 1, 2014, covered employers under New York City’s Earned Sick Time Act, also known as the Paid Sick Leave Law, must distribute a written notice to existing employees regarding their rights under the Paid Sick Leave Law. This notice is available on the Department of Consumer Affairs website: http://www.nyc.gov/html/dca/downloads/pdf/MandatoryNotice.pdf. This notice must also be distributed to all new hires, first employed on or after April 1, 2014. The notice must set forth your calendar year, including the start and end date as each employer’s calendar year may differ.

Effective April 1, 2014, covered employers should have begun complying with the Paid Sick Leave Law. Under the Paid Sick Leave Law,  employers with 5 or more employees must provide up to 40 hours of paid sick leave per calendar year for employees who work more than 80 hours per calendar year. A calendar year is defined as any regular and consecutive twelve month period of time as determined by the employer. Eligible employees accrue 1 hour for every 30 hours worked and should have begun accruing sick time effective April 1, 2014. Employees can begin using their sick leave 120 days after their first day of employment. For existing employees, this means that they can begin using their accrued sick leave as of July 30, 2014. Employers must retain records documenting compliance with law for at least three years.

If your current paid leave policy provides eligible employees with paid leave that meets the requirements of the Act and allows employees to use the leave for the purposes covered under the Act, you are not required to provide additional leave.

Please note that there are exceptions to the Paid Sick Leave Law. For example, employees covered by a collective bargaining agreement in effect as of April 1, 2014 will not be covered under the Act until the collective bargaining agreement terminates. The Act also does not apply to employees of government agencies.

For more information on the Paid Sick Leave Law and how you it may affect your current policies, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@nullgenovaburns.com, or Erica B. Lowenthal, Esq., Associate in the Employment Law & Litigation Group, at elowenthal@nullgenovaburns.com.

Jersey City Employers Must Provide Sick Time

Beginning today January 24, 2014, businesses in Jersey City with 10 or more employees must provide up to 40 hours of paid sick time to each employee each calendar year, including part-time and temporary employees who work at least 80 hours in the year. Jersey City employers with fewer than 10 employees must provide unpaid sick time to their employees, including part-time and temporary employees who work at least 80 hours in the year.

Generally, employees accrue one hour of sick time for every 30 hours worked beginning on the first day of employment. However, employees may not use sick time until the 91st day of employment. Sick time may be used for one of the following reasons: the 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, or to care for the employee’s child whose school is closed due to a public health emergency. Sick time may be taken in hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time, whichever is smaller.

Employers that already have a paid leave policy in place that provides at least an equal amount of paid leave for the same qualifying events covered by the ordinance are not required to provide additional paid sick time, but should have their leave policies reviewed carefully by counsel to ensure that their policies comply. Jersey City’s new law provides for carry-over of accrued but unused sick time from one calendar year to the next, however employees are not required to pay employees for accrued but unused sick time at the time of separation from employment.

Employers must provide written notice to new hires, display a poster approved by the Jersey City Department of Health and Human Services, and retain records of employee pay and sick time usage for three years. Employers who violate the notice and posting requirements may face fines up to $100 for each employee who did not receive a notice and up to $500 for each establishment where a poster was not displayed. This new law also prohibits retaliation, and employers found in violation can face a fine of up to $1,250 and/or up to 90 days of community service per violation.

Some Frequently Asked Questions about Jersey City’s new law can be found here.

For more information on the new ordinance, or for information on paid sick time laws in other jurisdictions, please contact Patrick W. McGovern, pmcgovern@nullgenovaburns.com, or Rebecca Fink,rfink@nullgenovaburns.com, in the firm’s Labor Group.

New York City to Require Employers to Provide Paid Sick Time

The New York City Council has agreed on legislation requiring employers to provide paid sick time. Despite Mayor Bloomberg’s vow to veto the bill, there appears to be enough support to override a veto.

Beginning in April 2014, businesses with 20 or more employees would have to provide five paid sick days for mental or physical illness, injury or health condition or medical care or treatment to employees or employees’ children, spouses, parents, mothers-in-law, fathers-in-law, domestic partners, children of domestic partners, mothers of domestic partners and fathers of domestic partners. Employers with 15 or more employees would have to do the same by October 2015. All other employers would have to provide five unpaid sick days per year.

Under the legislation, employees would be entitled to accrue one hour of paid sick time for every thirty hours of work, up to a maximum of forty hours of paid sick time each calendar year. Employees must be compensated at their regular rate of pay for accrued sick days. Employers will be permitted to require employees to provide reasonable notice of sick time use, and for an absence of more than three consecutive works days an employer may require supporting documentation. Businesses may continue to provide sick time under existing policies and practices provided employees receive at least as much protection as under the sick time bill.

The bill also contains certain exceptions for new businesses as well as non-retaliation, recordkeeping and notice and posting requirements with which employers should familiarize themselves. A final vote is expected later in April.

We will continue to monitor New York City’s sick time bill. For more information on the legislation and implementing lawful workplace policies, please contact Douglas E. Solomon, Esq., dsolomon@nullgenovaburns.com, or Douglas J. Klein, Esq., dklein@nullgenovaburns.com in our Labor Law Practice Group.

The Evolving Law and the Static Public Sector Collective Negotiations Agreement

When was the last time you had your public sector collective negotiations agreement reviewed to determine whether your contract contains non-negotiable items?  Too often contractual provisions that were negotiated years ago survive contract after contract without this basic question even being considered.  This basic question should be regularly raised concerning every Article of your collective negotiations agreement to ensure you are not negotiating away managerial prerogatives nor providing greater benefits than need to be provided.

It is likely your collective negotiations agreement contains a provision that is not negotiable.  That means it is a topic that the public employer has complete discretion on and cannot be subject to a grievance.  There are various examples, but take for instance, work schedules and shift changes.  Work schedules and hours that individuals work are generally a negotiable issue.  However, the hours and days in which services are to be provided are non-negotiable issues.  Such nuances in public sector labor law occur with many topics from health insurance to sick leave to promotional practices and procedures, etc.  Knowledge of the negotiable and non-negotiable aspects of these items is vital in ensuring your collective negotiations agreement is not giving away any of these important managerial prerogatives.

Decisions as to negotiability of issues are constantly being rendered by the Public Employment Relations Commission.  These decisions may have changed a provision in your collective negotiations agreement that was previously negotiable to be a non-negotiable subject.  Or, you simply may have been operating with a collective negotiations agreement that contains non-negotiable items and simply haven’t noticed.  These items do not need to be bargained out of the collective negotiations agreement.  Rather, they may be removed through a process called a Petition for a Scope of Negotiations Determination.  This is an effective tool which should be utilized when necessary to remove such non-negotiable issues from a collective negotiations agreement.  However, a discussion with the applicable unions explaining that the issue is not negotiable, may obviate the need for resorting to the filing of a scope of negotiations petition.

The first step in the process though is to know what should and should not be in your collective negotiations agreement.  When was the last time you undertook this review?

For further information or advice on this topic, please contact Joseph M. Hannon, Esq., jhannon@nullgenovaburns.com, in the Public Sector Labor Law Practice Group.