Effective October 1, 2013, certain employers in New Jersey must provide up to 20 days of unpaid leave to employees who have been victims of domestic violence or sexual assault.
On July 17, 2013, Governor Chris Christie signed into law the New Jersey Security and Financial Empowerment Act (NJ SAFE Act), which provides unpaid leave for such employees. The NJ SAFE Act also permits an eligible employee to take leave when his or her parent, spouse, child, domestic partner, or civil union partner has been the victim of such violence or assault. The unpaid leave is available for the following purposes related to the domestic violence or sexually violent offense:
Seeking medical attention for or recovering from physical or psychological injuries
Obtaining services from a victim services organization
Participating in safety planning, seeking temporary or permanent relocation, or taking other actions to increase safety of the employee or the employee’s child, parent, spouse, domestic partner, or civil union partner
Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s child, parent, spouse, domestic partner, or civil union partner
Attending, participating in, or preparing for civil or criminal court proceedings
To be eligible for such leave, employees must have worked for the employer for 12 months and must have worked not less than 1,000 base hours during that time. The leave must be taken within one year of the incident. Each incident constitutes a separate offense for which the employee is entitled to 20 days, provided that the employee has not exhausted the allotted time for the 12-month period. The leave may be used intermittently in intervals of at least a day. The NJ SAFE Act does permit employees to elect or employers to require that employees use accrued paid vacation, personal, or medical or sick leave during the 20-day period. Moreover, if the reason for the NJ SAFE Act leave qualifies for leave under the New Jersey Family Leave Act or the federal Family and Medical Leave Act, such leave time may be taken concurrently.
If the leave is foreseeable, an employee must provide the employer with prior written notice. The employer also may require the employee to provide documentation of the domestic violence or sexually violent offense. Any information provided to the employer or any information regarding leave under the Act must be kept “in the strictest confidentiality, unless the disclosure is voluntarily authorized in writing by the employee or is required by a federal or state law, rule, or regulation.”
The NJ SAFE Act prohibits discrimination, harassment, and retaliation against employees who have taken or requested leave in accordance with the Act. If employers fail to grant leave in accordance with the law, employees have a private right of action. This means that employers may be subject to civil actions or sanctions for retaliation and discrimination. These may include reinstatement, compensation for lost wages, reinstatement of benefits and seniority rights, attorneys’ fees, and injunctive relief. Further, employers may be subject to fines ranging from $1,000 to $2,000 for the first violation, and subsequent violations may result in fines of up to $5,000.
The NJ SAFE Act applies to both public and private employers with at least 25 employees. The law does not specify whether the employees must be located in New Jersey. The New Jersey Family Leave Act applies to New Jersey employers with 50 or more employees, however, regardless of how many employees work in New Jersey. Consequently, pending further clarification, it should be presumed that every New Jersey employer with at least 25 employees is subject to the law’s requirements, regardless of where the employees are located.
Employers should review and update their policies and procedures to ensure compliance with the new law. In addition, employers must provide employees with notice of their rights in a form and manner as prescribed by the New Jersey Commissioner of Labor and Workforce Development. Employers also are required to properly document any leave time. The state Department of Labor and Workforce Development is expected to post guidance on the law’s requirements.