New Jersey Employers Face New Leave Requirement

by Fisher Phillips
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Beginning October 1, 2013, many New Jersey public and private employers will be required to grant job-protected leave to victims of domestic violence or sexually-violent offenses, and also to family members of such victims. That is the effective date of the New Jersey Security and Financial Empowerment Act, known as the SAFE Act, which applies to employers with 25 or more employees; it provides for 20 days of unpaid leave in a 12-month period.

Eligibility

The SAFE Act does not specify whether the 25 employees must work in New Jersey. Based upon the interpretation of a similar provision of the New Jersey Family Leave Act (NJFLA), it seems likely that as long as an employer has a total of 25 employees working anywhere, even one New Jersey employee would be eligible for SAFE Act leave.

Employees become eligible for leave once they have worked for an employer for at least 12 months. They must also have worked 1,000 base hours in the 12-month period immediately preceding the leave. If the New Jersey Department of Labor and Workforce Development (NJDOLWD) follows the NJFLA regulations, straight-time hours, overtime hours of non-exempt employees, workers’ compensation leave, and military leave will be considered as hours worked.

Reasons For Leave

An employee can take leave if an incident of domestic violence or a sexually-violent offense is committed against the employee, or the employee’s child, parent, spouse, domestic partner, or civil union partner (collectively referred to as “family member”).

The definitions of “domestic violence” and “sexually violent offense” include homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking, and attempts to commit violent sexual crimes. Any other offense may qualify if the court makes a specific finding on the record that the offense should be considered a sexually violent offense.

An employee may use SAFE Act leave for the employee or family member:

  1. to seek medical attention for, or recover from, physical or psychological injuries caused by domestic or sexual violence;
  2. to obtain services from a victim services organization;
  3. to obtain psychological or other counseling;
  4. to participate in safety planning, to temporarily or permanently relocate, or to take other actions to increase the safety of the employee or the employee’s family member from future domestic, or sexual violence; ensuring economic security;
  5. to seek legal assistance or remedies to ensure the health and safety of the employee or the employee’s family member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence; or
  6. to attend, participate in, or prepare for a criminal or civil court proceeding relating to an incident of domestic or sexual violence.

Amount And Use Of Leave

Employees are eligible for 20 days of unpaid leave in a 12-month period. The 12-month period starts on the day following any incident of domestic violence or any sexually-violent offense. Each incident is a separate offense and triggers eligibility for leave, but employees are limited to 20-days of leave in one 12-month period. Leave may be taken continuously or intermittently in full-day increments. Partial days of absence including reporting to work late or leaving early are not protected.

Employers are not required to pay employees for leave. An  employee may elect, or an employer may require, an employee to use accrued paid vacation, sick or medical, or personal leave during all or part of the 20 days.

An employee taking leave to care for a family member who suffered physical or psychological injuries covered by the SAFE Act may also be eligible for leave under the NJFLA and federal Family and Medical Leave Act (FMLA). An employee who personally suffers such injuries would not be eligible for NJFLA leave, but may be eligible for FMLA leave. The SAFE Act permits an employer to count the leave against the employee’s entitlement under the SAFE Act, the NJFLA, and the FMLA simultaneously.

Employee Obligations 

Employees are required to provide advance written notice of the need for SAFE Act leave if the necessity for the leave is foreseeable. The notice must be provided “as far in advance as is reasonable and practical under the circumstances.”

The SAFE Act permits, and we recommend that an employer require, documentation of the domestic violence or sexually-violent offense requiring leave. The SAFE Act lists the documentation an employer may require:

  1. a domestic violence restraining order or other documentation of equitable relief issued by a court of competent jurisdiction;
  2. a letter or other written documentation from the county or municipal prosecutor documenting the domestic violence or sexually-violent offense;
  3. documentation of the conviction of a person for the domestic violence or sexually-violent offense;
  4. medical documentation of the domestic violence or sexually-violent offense;
  5. certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency or Rape Crisis Center, that the employee or employee’s family member is a victim of domestic violence or a sexually-violent offense; or
  6. other documentation or certification of the domestic violence or sexually-violent offense provided by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or employee’s family member in dealing with the domestic violence or sexually violent offenses.

Employer Obligations

You must inform employees of their rights and obligations under the SAFE Act by displaying the notice prepared by the Commissioner of the NJDOLWD. The NJDOLWD has not yet issued the Notice. The SAFE Act also requires employers to advise employees of their rights and obligations through “other appropriate means.” Our advice is that you include a SAFE Act policy in your Employee Handbook and train supervisors to recognize and properly handle requests for SAFE Act leave.

An employer must maintain, “in the strictest confidence,” any documentation that an employee provides in support of a SAFE Act leave request or the fact that an employee failed to return to work from a SAFE Act leave. However, disclosure is permitted when required by a federal or state law, rule or regulation, or if the employee voluntarily authorizes disclosure in writing.

The SAFE Act prohibits employers from discharging, discriminating or retaliating against, or harassing an employee, or threatening to do so, because the employee requested or used SAFE Act leave, or refused to authorize the release of confidential information. These protections apply to all  terms, conditions, or privileges of employment including compensation.

Remedies 

If an employer violates the SAFE Act, a present or former employee may file a lawsuit in the Superior Court of New Jersey within one year from the date of the violation. If an employee prevails, a court may award the employee lost wages, benefits, and other remuneration; damages for emotional distress, pain and suffering; and punitive damages. In addition, the court may order the employer to pay the employee’s costs and attorneys’ fees. The statute does not permit payment of attorneys’ fees to an employer that prevails on a claim.

A court may also assess a civil fine of not less than $1,000 and not more than $2,000 for the first violation and up to $5,000 for each subsequent violation. The fine is payable to the employee. In addition to these monetary remedies a court may issue an injunction to restrain further violations, and order reinstatement of the employee to the same or an equivalent position, with full fringe benefits and seniority rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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