United States: NJ’s "SAFE Act" Leave Law Takes Effect October 1. Is Your Company Ready?

Absent any extensions, on October 1, 2013, New Jersey employers with 25 or more employees will be subject to New Jersey's Security and Financial Empowerment (SAFE) Act. This Act requires employers to grant employees unpaid leave for up to 20 days a year for matters related to domestic violence or a sexually violent offense. Key provisions of the Act (with compliance tips) include:

• An employee is eligible for leave if the employee worked for an employer at least 1,000 hours during the immediately preceding 12-month period. Accordingly, it is important for employers to document all hours worked to determine whether an employee qualifies for leave. It also is important that employers properly classify employees. For example, although the Act does not apply to independent contractors of a company, misclassifying an employee as an independent contractor could run an employer afoul of the SAFE Act if they deny leave on the basis of a non-employee relationship.
• Employers are subject to the Act if they employed 25 or more employees for each working day during each of 20 or more calendar work weeks in the then-current or immediately preceding calendar year. Although the Act does not specify whether the 25-employee threshold counts employees outside of New Jersey or just those employed in New Jersey, for now, employers should err on the side of caution and include all employees everywhere when determining whether they meet the 25-employee threshold.
• An employee may take leave intermittently in intervals of no less than one day.  Therefore, an employee who takes only part of the day off under the Act will have the entire day count against their 20-day allotment.
• Unpaid leave runs concurrently with any paid vacation leave, personal leave, or medical or sick leave that the employee elects to use or which employers require the employee to use during any part of the 20-day period of unpaid leave. Your policies and practices should make clear that all leave time, to the extent permitted by law, run concurrently.  This will help avoid the inadvertent pyramiding of leave time.
• If the employee requests leave for a reason covered by both the NJ SAFE Act and New Jersey's Family Leave Act or the Federal Family and Medical Leave Act, the leave counts against the employee's entitlement under these other leave laws.  Therefore, it is important for employers to keep accurate records of all leave time requests and usage.
• Employees requesting leave must provide employers with written notice of the need for the leave – provided that the leave is reasonably foreseeable under the circumstances. Therefore, where an employee requests leave the day of a court appearance that they knew about months in advance, you arguably could deny the leave under the Act.  However, the denial of leave in this situation is not that simple, and must be analyzed in light of many other factors, including, for example, your call off policy and practice.  Treating SAFE Act leave requests different from other time off requests could raise the issue of discriminatory treatment.
• Employers may require employees to provide documentation supporting the leave request. However, the Act requires employers keep all documentation supporting leave strictly confidential — unless the employee permits disclosure in writing, or disclosure is authorized by a federal or state law, rule or regulation. Thus, employers should treat such documentation similar to employee medical information – including but not limited to keeping such information apart from a general, readily accessible employment file.
• An employee may bring suit in court against an employer who violates the Act, or takes adverse action against the employee who requests leave under the Act.  Thus, employers may face litigation and the civil costs that litigation may bring, including but not limited to reinstatement of employment, back and front pay, and the employee's attorneys' costs and fees.
• The Act requires employers to post notice of the Act in a conspicuous place at the work site. The official notice can be located here.
• In addition, employers should publish notice of rights under the Act where they post information about other policies and leave entitlements, including policy handbooks, employee manuals – both in written and online sources.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.