Skip to content
This article was originally written by Jennifer Fischer and posted on Kelley Drye’s Labor Days Blog.

Effective October 29, 2018, the New Jersey Sick Leave Law requires employers to allow employees to accrue 1 hour of earned sick leave for every 30 hours work, up to 40 hours each year.  The law permits employers to create policies that provide additional leave time.  Here is a link to the law from the State of New Jersey Department of Labor and Workforce Development website.

Since we originally posted about the Paid Sick Leave Law, we’ve received a number of questions about how the Sick Leave Law will impact various employers.  Here are some FAQs that we’ve received.   Have a question that we didn’t cover?  Let us know.

Q: When does the law go into effect?
A: October 29, 2018.

Q: Is there an exception for small businesses?
A: No.  All employers are required to provide their employees with earned sick time.

Q: Are there any regulations for this new law?
A: The Department of Labor and Workforce Development prosed new regulations in September.  A public hearing will be held on the proposed new rules will be held on November 13, 2018.  Written comments must be submitted by December 14, 2018.

Q: Some of our employees work part-time.  Do they earn the same amount of sick time as full-time employees?
A: All employees, regardless of full-time or part-time status, earns 1 hour of paid sick leave for every 30 hours that they work.

Q: Our employees live in New Jersey but our office is not located in New Jersey.  Do we have to comply with the new paid sick leave law?
A: No.  The paid sick leave only applies to employees working in New Jersey.

Q: Do we need to offer paid sick leave to the independent contractors that work for us?
A: According to the new law, all “employees” must be allowed to earn paid sick leave.  The law defines “employee” as “an individual engaged in service to an employer in the business of the employer for compensation.”

However, the proposed regulations suggest that the “ABC Test” found in N.J.S.A. 43:21-19(i)(6)(A), (B), and (C) be used to determine whether an individual is an employee or an independent contractor under the new paid sick leave law.

Q: We employ per diem health care workers.  Are they exempt from coverage?
A: It depends.  The new law covers “employees” and the definition of “employee” “does not include . . . a per diem health care employee.”  A “per diem health care employee” means:
(1) health care professional licensed in the State of New Jersey employed by a health care facility licensed by the New Jersey Department of Health;
(2) any individual that is in the process of applying to the New Jersey Division of Consumer Affairs for a license to provide health care services who is employed by a health care facility licensed by the New Jersey Department of Health; of
(3) any first aid, rescue or ambulance squad member employed by a hospital system.

Additionally, a “per diem health care employee” “shall not include any individual who is certified as a homemaker-home health aide.”  This means homemaker-home health aides are considered “employees” under the NJ Paid Sick Leave law and must be covered, even if they are per diem employees.

Q: Our employees earn money based on commission or tips.  How will do we pay them for their paid sick leave days?
A: The law states that employees must be paid 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.”

The new proposed regulations suggest that “where an employee is paid by commission, whether base wage plus commission or commission only, the employer must pay the employee during earned sick leave an hourly rate that is the base wage or the State minimum wage rate, whichever is greater. . . When an employee is paid on a piecework basis, . . . to calculate the employee’s rate of pay for earned sick leave, the employer shall add together the employee’s total earnings for the seven most recent workdays when the employee did not take leave and divide that sum by the number of hours the employee spent performing the work during workdays.”

This post was written by Barbara E. Hoey, Mark A. Konkel, Steven R. Nevolis and Diana R. Hamar and originally posted on Kelley Drye’s Labor Days Blog.

As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment relationship in New York.

Here is what there is so far:

New York Paid Family Leave

As we previously reported, effective January 1, most employers in New York State will be covered by the new Paid Family Leave law (“PFL”). Under the PFL, employers will need to provide eligible employees with 8 weeks of family leave with salary reimbursement capped at 50% of the state’s average weekly wage. This will increase on an annual sliding schedule until 2021 when employees will be entitled to 12 weeks of family leave with salary reimbursement capped at 67% of the state’s average weekly wage.

Eligible employees will be permitted to take leave to care for a qualified family member’s serious medical condition, to care for the birth or placement of a child, or for a qualified military exigency. Leave under the PFL will overlap with an employee’s leave under the Family and Medical Leave Act under certain circumstances.

For a more extensive analysis of the PFL, its requirements (including employer notice requirements), and suggested steps for compliance, we encourage you to read our previous blog post on this law: “A New Headache – New York’s Paid Family LeaveContinue Reading The New Year Brings New Rules to New York

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes. Continue Reading No Summer Breaks for the EEOC