New Jersey-2014-S785-Introduced

An Act mandating certain employers provide earned sick leave to employees.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. For the purposes of this act:

"Certified Domestic Violence Specialist" means a person who has fulfilled the requirements of certification as a Domestic Violence Specialist established by the New Jersey Association of Domestic Violence Professionals.

"Child" means a biological, adopted, or foster child, stepchild or legal ward of an employee, child of a domestic partner or civil union partner of the employee, if the child is less than 19 years of age, or is 19 years of age or older but incapable of self-care because of mental or physical impairment.

"Civil union" means a civil union as defined in section 2 of P.L.2006, c.103 (C.37:1-29).

"Commissioner" means the Commissioner of Labor and Workforce Development.

"Department" means the Department of Labor and Workforce Development.

"Designated domestic violence agency" means a county-wide organization with a primary purpose to provide services to victims of domestic violence, and which provides services that conform to the core domestic violence services profile as defined by the Division of Youth and Family Services in the Department of Children and Families and is under contract with the division for the express purpose of providing the services.

"Domestic partner" means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).

"Domestic violence" means domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19) and section 1 of P.L.2003, c.41 (C.17:29B-16), stalking, or any sexually violent offense, as defined in section 3 of P.L.1998, c.71 (C.30:4-27.26).

"Employee" means an individual engaged in service to an employer in the business of the employer for compensation.

"Employer" means any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company or other entity that employs employees in the State.

"Family member" means a child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee.

"Health care professional" means any person licensed under federal, State, or local law, or the laws of a foreign nation, to provide health care services, or any other person who has been authorized to provide health care by a licensed health care professional, including but not limited to doctors, nurses and emergency room personnel.

"Parent" means a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or of the employee's spouse, domestic partner, or civil union partner, or a person who stood in loco parentis of the employee or the employee's spouse, domestic partner, or civil union partner when the employee, spouse or partner was a minor child.

"Retaliatory personnel action" means denial of any right guaranteed under this act and any threat, constructive discharge, suspension, demotion, unfavorable reassignment, refusal to promote, disciplinary action, sanction, or any other adverse action against an employee.

"Sibling" means a biological, foster, or adopted sibling of an employee.

"Small employer" means an employer who had, on average, fewer than 10 employees during the preceding calendar year, or during the current year if the employer had no employees during the preceding calendar year. Periods of time in which the employer had no employees shall not be considered in determining the average number of employees. In determining whether an employer is a small employer, the number of employees shall include all individuals working for compensation on a full-time, part-time or temporary basis, including individuals made available to work at a workplace of the employer through a temporary help services firm.

"Spouse" means a husband or wife.

2. a. Each employer shall provide earned sick leave to each employee working for the employer in the State. For every 30 hours worked, the employee shall accrue one hour of earned sick leave. The employer shall not be required to permit the employee to accrue at any one time, or carry forward from one year to the next, more than 40 hours of earned sick leave if the employer is a small employer, or more than 72 hours of earned sick leave if the employer is not a small employer. Unless the employee has accrued earned sick leave prior to January 1, 2014, the earned sick leave shall begin to accrue on January 1, 2014 or on the 90th day after the hiring of the employee if hired after January 1, 2014, unless the employer agrees to an earlier date. The employee may use earned sick leave as it is accrued.

b. An employer shall be in compliance with this section if the employer offers any other fully paid leave that may be used for the purposes of section 3 of this act in the manner provided by this act, and is accrued at a rate equal to or greater than the rate described in this section.

c. The employer shall pay the employee for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, except that the pay rate shall not be less than the minimum wage required for the employee pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4).

d. 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 use accrued earned sick leave. 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.

3. a. An employer shall permit an employee to use the earned sick leave accrued pursuant to this act for any of the following:

(1) Time needed for diagnosis, care, or treatment of, or recovery from, an employee's mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee;

(2) Time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member's mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member;

(3) Absence necessary due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic violence, if the leave is to allow the employee to obtain for the employee or the family member: medical attention needed to recover from physical or psychological injury or disability caused by domestic violence; services from a designated domestic violence agency or other victim services organization; psychological or other counseling; relocation; or legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic violence; or

(4) Time during which the employee is not able to work because of a closure of the employee's workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee's family in need of care by the employee, would jeopardize the health of others.

b. If an employee's need to use earned sick leave is foreseeable, an employer may require advance notice, not to exceed seven days prior to the date the leave is to begin, of the intention to use the leave and its expected duration, and shall make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer. If the reason for the leave is not foreseeable, an employer may require an employee to give notice of the intention as soon as practicable. For earned sick leave of three or more consecutive days, an employer may require reasonable documentation that the leave is being taken for the purpose permitted under subsection a. of this section. If the leave is permitted under paragraph (1) or (2) of subsection a. of this section, documentation signed by a health care professional who is treating the employee or the family member of the employee indicating the need for the leave and, if possible, number of days of leave, shall be considered reasonable documentation. If the leave is permitted under paragraph (3) of subsection a. of this section because of domestic violence, any of the following shall be considered reasonable documentation of the domestic violence: medical documentation; a law enforcement agency record or report; a court order; documentation that the perpetrator of the domestic violence has been convicted of a domestic violence offense; certification from a certified Domestic Violence Specialist or a representative of a designated domestic violence agency or other victim services organization; or other documentation or certification provided by a social worker, counselor, member of the clergy, shelter worker, health care professional, attorney, or other professional who has assisted the employee or family member in dealing with the domestic violence. If the leave is permitted under paragraph (4) of subsection a. of this section, a copy of the order of the public official or the determination by the health authority shall be considered reasonable documentation. An employer who chooses to require documentation for earned sick leave shall pay all out-of-pocket expenses the employee incurs to obtain the documentation.

c. Nothing in this act shall be deemed to require an employer to provide earned sick leave for an employee's leave for purposes other than those identified in this section, or prohibit the employer from taking disciplinary action against an employee who uses earned sick leave for purposes other than those identified in this section. Unless an employer policy or collective bargaining agreement provides for the payment of accrued earned sick leave upon termination, resignation, retirement or other separation from employment, an employee shall not be entitled under this section to payment of unused earned sick leave upon the separation from employment.

d. Any information an employer possesses regarding the health of an employee or any family member of the employee or domestic violence affecting an employee or employee's family member shall be treated as confidential and not disclosed except to the affected employee or with the written permission of the affected employee.

4. a. No employer shall take retaliatory personnel action or discriminate against an employee because the employee requests or uses earned sick leave either in accordance with this act or the employer's own earned sick leave policy, as the case may be, or files a complaint with the commissioner alleging the employer's violation of any provision of this act, or informs any other person of their rights under this act. No employer shall count earned sick leave taken under this act as an absence that may result in the employee being subject to discipline, discharge, demotion, suspension, a loss or reduction of pay, or any other adverse action.

b. There shall be a rebuttable presumption of an unlawful retaliatory personnel action under this section whenever an employer takes adverse action against an employee within 90 days of when that employee: files a complaint with the department or a court alleging a violation of any provision of this section; informs any person about an employer's alleged violation of this section; cooperates with the department or other persons in the investigation or prosecution of any alleged violation of this section; opposes any policy, practice, or act that is unlawful under this section; or informs any person of his or her rights under this section.

c. Protections of this section shall apply to any person who mistakenly but in good faith alleges violations of this act.

d. Any violator of the provisions of this section shall be subject to relevant penalties and remedies provided by the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), including the penalties and remedies provided by section 25 of that act (C.34:11-56a24) for discharge or other discrimination.

5. Any failure of an employer to make available or pay earned sick leave as required by this act, or any other violation of this act, shall be regarded as a failure to meet the wage payment requirements of the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), or other violation of that act, as the case may be, and all remedies, penalties or other measures provided by that act for failure to pay wages or other violations of that act shall be applicable, including, but not limited to, penalties provided pursuant to sections 23 and 25 of that act (C.34:11-56a22 and 34:11-56a24), and civil actions by employees pursuant to section 26 of that act (C.34:11-56a25), except that an award to an employee in a civil act shall include, in addition to the amount provided pursuant to section 26 of that act (C.34:11-56a25), any actual damages suffered by the employee as the result of the violation plus an equal amount of liquidated damages.

6. Employers shall retain records documenting hours worked by employees and earned sick leave taken by employees, for a period of five years, and shall, upon demand, allow the department access to those records to monitor compliance with the requirements of this act. If an employee makes a claim that the employer has failed to provide earned sick leave required by this act and the employer has not maintained or retained adequate records documenting hours worked by the employee and earned sick leave taken by the employee or does not allow the department access to the records, it shall be presumed that the employer has failed to provide the earned sick leave, absent clear and convincing evidence otherwise. In addition, the penalties provided by the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.) for violations of the requirements of that act regarding the maintaining and disclosure of records shall apply to violations of the requirements of this section.

7. a. Employers shall provide notification, in a form issued by the commissioner, to employees of their rights under this act, including the amount of earned sick leave to which they are entitled and the terms of its use, and remedies provided by this act to employees if an employer fails to provide the required benefits or retaliates against employees exercising their rights under this act. Each covered employer shall conspicuously post the notification in a place or places accessible to all employees in each of the employer's workplaces. The employer shall also provide each employee employed by the employer with a written copy of the notification: not later than 30 days after the form of the notification is issued; at the time of the employee's hiring, if the employee is hired after the issuance; and at any time, when first requested by the employee. The commissioner shall make the notifications available in English, in Spanish, and any other language that the commissioner determines is the first language of a significant number of workers in the State and the employer shall use the notification in English, Spanish or any other language for which the commissioner has provided notifications and which is the first language of a majority of the employer's workforce.

b. The commissioner shall advise any employee who files a complaint pursuant to this section and is covered by a collective bargaining agreement, that if the agreement provides for earned sick leave, the employee may have a right to pursue a grievance under the terms of the agreement.

8. a. This act provides minimum requirements pertaining to earned sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other federal, State or local law, ordinance, regulation, requirement, policy, or standard that provides rights or benefits to employees which are more favorable to employees than those required by this act or which provide rights or benefits to employees not covered by this act.

b. No provision of this act, or any regulations promulgated to implement or enforce this act, shall be construed as:

(1) Requiring an employer to reduce, or justifying an employer in reducing, rights or benefits provided by the employer pursuant to an employer policy or collective bargaining agreement which are more favorable to employees than those required by this act or which provide rights or benefits to employees not covered by this act;

(2) Preventing or prohibiting the employer from agreeing, through a collective bargaining agreement or employer policy, to provide rights or benefits which are more favorable to employees than those required by this act or to provide rights or benefits to employees not covered by this act; or

(3) Prohibiting an employer from establishing a policy whereby an employee may donate unused accrued earned sick leave to another employee or other employees.

9. The commissioner shall adopt rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C. 52:14B-1 et seq.) to effectuate the purposes of this act.

10. This act shall take effect on the 120th day following enactment.

STATEMENT

This bill requires each employer to provide earned sick leave to each employee it employs in the State. The employee accrues one hour of earned sick leave for every 30 hours worked. The employer is not required to permit the employee to accrue at any one time, or carry forward from one year to the next, more than 40 hours of earned sick leave if the employer has less than 10 employees in the State, or more than 72 hours of earned sick leave if the employer has 10 or more employees. Unless the employee accrued earned sick leave with the employer before January 1, 2014, the leave accrues beginning on that date or on the 90th day after the employee is hired, unless the employer agrees to an earlier date.

The employer is required to pay the employee for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, except that the pay rate may not be less than the State minimum wage. Earned sick leave may be used for:

1. Time needed for diagnosis, care, or treatment of, or recovery from, an employee's mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee;

2. Time needed for the employee to care for a family member during diagnosis, care, or treatment of, or recovery from, the family member's mental or physical illness, injury or other adverse health condition, or preventive medical care for the family member; or

3. Absence needed due to circumstances resulting from the employee or a family member being a victim of domestic violence, if the leave is to obtain medical attention, counseling, relocation, legal or other services.

The bill prohibits retaliatory personnel actions against an employee for the use or requested use of earned sick leave or for filing of a complaint for an employer violation. The bill sets requirements for record keeping and for notifying workers of their rights under the bill. It provides for penalties and other remedies for non-compliance with the requirements of the bill, based on the penalties and remedies for non-compliance with the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.).

The bill specifies that it is intended to set minimum standards for earned sick leave, but not to prevent any employer policies, collective bargaining agreements or other laws or ordinances which set higher standards.