New Jersey recently enacted the New Jersey Security and Financial Empowerment Act (SAFE Act), P.L. 2013, c.82, which takes effect on October 1, 2013. This law requires New Jersey employers to provide 20 days of unpaid leave to an eligible employee who is a victim of domestic violence or sexual assault or whose child, parent, spouse, domestic partner or civil union partner was the victim of sexual assault or domestic violence. Under the SAFE Act, employer means “a person or corporation, partnership, individual proprietorship, joint venture, firm or company, or other similar legal entity” and covers private and public entities with 25 or more employees.
To be eligible for leave, an employee must have worked for the employer for at least 12 months and at least 1,000 base hours in the 12-month period immediately preceding the leave. Employees must take leave within one year of the qualifying incident and must provide advance notice to the employer if the need for leave is foreseeable. The SAFE Act provides that eligible employees may take leave to:
seek medical attention for or recover from, physical or psychological injuries caused by domestic or sexual violence
obtain services from a victim services organization
obtain psychological or other counseling
participate in safety planning, to temporarily or permanently relocate, or to take other actions to increase safety
seek legal assistance or remedies to ensure the health and safety of the employee or the employee’s relative, and
attend, participate in, or prepare for a criminal or civil court proceeding relating to an incident of domestic or sexual violence.
Employers may require employees to use available accrued paid vacation leave, personal leave, or medical or sick leave during any part of the 20-day period of unpaid leave. If an employee requests leave for a reason that is also covered by the federal Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA), the leave under the SAFE Act may run concurrently with the employee’s entitlement under these laws. Employees make take this leave intermittently, in intervals of no less than one day.
Employers may request documentation validating the need for leave, and the SAFE Act provides a list of sufficient documentation. Employers should be aware that the documentation submitted by an employee “shall be retained 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.” Employers must also display “conspicuous notice” of their employees’ rights and obligations under the SAFE Act in the manner and form provided by the Commissioner of Labor and Workforce Development and “use other appropriate means to keep [their] employees so informed.”
If an employer violates the SAFE Act, an employee may bring a private civil action within one year of the alleged violation, and the court can award the prevailing plaintiff all remedies available in common law tort actions, including economic damages, attorney’s fees, and reinstatement. The employer may be subject to a civil fine of $1,000 or up to $2,000 for a first violation, and up to $5,000 for any subsequent violations.
Because the SAFE Act covers employers with at least 25 employees, a number of smaller employers who did not have the requisite 50 or more employees to be subject to the NJFLA or the FMLA will be affected and be required to comply with the SAFE Act by the October 1, 2013 date. Further, it is likely that the law may be interpreted to cover employers whose employees reside in other states in addition to New Jersey. Therefore, an employer that has fewer than 25 employees in New Jersey, but more than 25 employees total, may still be required to comply with the SAFE Act.
Employers should update their current leave policies to ensure compliance with the SAFE Act and train management and human resources personnel on the provisions of the SAFE Act. Human resource personnel should be diligent as this act expands the list of qualifying reasons for leave that are not included in existing leave laws. Employers should also look for the notice posting that will be provided by the Department of Labor and Workforce Development and make sure to follow the posting requirements.
Finally, employers who have multi-state operations should be aware that, in addition to New Jersey, 11 states and the District of Columbia, as well as the City of Philadelphia, have enacted similar laws concerning leave for those affected by domestic violence and sexual assault.