Legal Alerts

One of Governor Murphy’s key electoral platforms during his gubernatorial campaign was his goal to increase New Jersey’s minimum wage.  That electoral promise became a reality just a few short weeks ago. On February 4, 2019, Governor Murphy officially signed into law the New Jersey Minimum Wage Bill. The law will ultimately increase the minimum wage rate in New Jersey from $8.85 (currently) to at least $15.00 by 2024. The wage increase progression will be as follows:

• At least $10/hour by July 1st, 2019
• At least $11/hour by January 1st, 2020
• At least $12/hour by January 1st, 2021
• At least $13/hour by January 1st, 2022
• At least $14/hour by January 1st, 2023
• At least $15/hour by January 1st, 2024

Most notably, the above progression and schedule does not apply to very small businesses, defined as employers with five or fewer employees. Such employers will not have to pay $15.00 an hour to their employees until 2026. Further, the law includes a provision allowing employers to take a “tip credit” against their minimum wage obligations up to a certain level but ultimately the hourly rate earned by the employee must still reach whatever the then mandated minimum wage level is at that time. Obviously, the first compliance date of which employers must be immediately aware is July 1. Prior to that time, employers must take the necessary internal steps of ensuring that all employees are receiving this upgraded minimum wage by that required date.  Thereafter, employers will then need to ready themselves for the next increase happening approximately six (6) months later raising the minimum wage again. With all the graduated changes under the law, employers would be wise to calendar these important dates and proactively ensure that your workplace complies with these new evolving minimum wage requirements.

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Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

On October 29, 2018 New Jersey’s Earned Sick Leave Act will go into effect.  This new law will impact almost every employer with workers in New Jersey and businesses should begin preparing now to ensure your policies and practices are compliant with the law.

Covered Businesses and Employees

The coverage of the law  is broad.  It applies to any business entity that has employees in the state of New Jersey without regard to the size of the business’ workforce, including temporary services firms. It also applies to most employees working in New Jersey who work for compensation.  However, the law does have limited exceptions including exclusions for public employers that are required by law to provide sick leave to their employees, per diem healthcare employees, public employees with existing sick leave benefits and construction industry employees working under a collective bargaining agreement.

The law goes on to prohibit and preempt New Jersey municipalities from enforcing their own ordinances for earned sick leave, which includes the 13 municipalities who enacted their own earned paid sick leave laws over the past few years: Bloomfield, East Orange, Elizabeth, Irvington, Jersey City, Montclair, Morristown, Newark, New Brunswick, Passaic, Paterson, Plainfield and Trenton.

Accrual of Sick Leave

 Employees will begin accruing sick leave time on the effective date of the law.  An employee then accrues up to forty hours of sick time at a rate of one hour for every thirty hours worked.  Employers can choose to frontload the full 40 hours at the beginning and employers with existing paid time off may utilize those policies to satisfy the Act’s requirements. It is important that employers review their vacation, personal time and sick day policies with a labor and employment counsel to ensure they are compliant with the law.

Following enactment, employers are required to designate a period of 12 consecutive months as its benefit year for purposes of implementing the law and can only change their established benefit year after first notifying the New Jersey Department of Labor and Workforce Development.  Further, for employees hired after the effective date of the law, benefits will begin to accrue immediately and they will be eligible to use the leave after 120 days.  However, employers may agree to an earlier date.

Using Time and Carryover

Employers would be permitted to require employees to provide up to seven days notice of the intended use and the expected duration whenever the need for sick time is “foreseeable” and employees would be required to make a “reasonable effort” to schedule the time off so it does not “unduly disrupt” operations.  However, the law would permit employers to prohibit employees from using foreseeable sick time “on certain dates” and to require specified documentation for unforeseeable sick time used during such dates. When sick leave time is not foreseeable, employers would be permitted to require notice “as soon as practicable,” so long as the employee has been provided notice of this requirement, such as in a legally compliant employee sick leave policy.  Further, employers are permitted to require “reasonable documentation” for sick time lasting three consecutive days or more, establishing that time was used for a permissible purpose.  The law sets forth what reasonable documentation is for the different types of sick time.

The law allows employees to use sick time for the following reasons:

• Diagnosis, care, treatment, or recovery for an employee’s own health conditions, including preventive care
• Diagnosis, care, treatment, or recovery for a family member’s health conditions, including preventive care
• Circumstances resulting from the employee’s or family member’s status as a victim of domestic or sexual violence, including related counseling and court proceedings
• Time the employee is unable to work because of the closure of an employee’s workplace or of a child’s school or place of care because of a public official’s order relating to a public health concern
• Time to attend a school-related event as requested or required by school staff, or to attend a meeting related to the care of a child’s health condition or disability

Employers should note that the definition of family member under the Act is broad, including any individual “whose close association with the employee is the equivalent of a family relationship.”

The law provides employers with the discretion in setting the increments in which its employees may use accrued time, but the largest increment chosen may not be greater than the number of hours an employee was scheduled to work in a given shift. The law also requires that accrued, but unused, sick time up to forty hours be carried over from one year to the next, but also permits offering employees the option of selling back unused sick time at the end of the benefit year in lieu of carrying over the time into the next year.  However, employers are not required to “pay out” unused sick time at the time of termination under the new law.

Notice and Record Keeping

The New Jersey Department of Labor and Workforce Development is in the process of developing a notice that employers must post in the workplace and must also provide a copy of to their employees.  This notice must be provided to employees within 30 days of its drafting and new hires must be given a copy of the notice upon hire.  Additionally, employers must give an employee a copy of the notice upon request.  Employers must also retain records of an employee’s hours worked and sick leave taken for a period of five years and allow the Department access to those records upon demand.

Anti-retaliation Provisions

Like many other employee rights and worker protection laws, the law  includes an anti-retaliation prohibition, which establishes a rebuttable presumption of retaliation when an employer takes adverse action against an employee within 90 days after engaging in protected activity surrounding an employee’s rights or use of earned sick leave under the law.  However, the law permits employers to discipline employees that misuse sick time for purposes other than those permitted by the law.

Going Forward

As the law will go into effect on October 29, 2018, it is more important than ever for employers to consult with legal counsel to take proactive steps including  performing a thorough internal audit of HR policies and practices, to ensure they are in complete compliance with New Jersey’s Earned Sick Leave Act and have adapted their business practices when the law takes effect.

Employers– get ready! The deadline as to when the new Form I-9 must be used is quickly approaching.  In case you are not aware, employers are required to use the Form I-9 to verify the identity and employment authorization of people hired for employment in the United States.  In July 2017, the US Citizenship and Immigration Services (“USCIS”) published a new version of the Form I-9 and starting on September 18, 2017, employers must only use the new Form I-9 or risk being subject to fines and penalties.

The new Form I-9 is available to employers on the USCIS website at https://www.uscis.gov/i-9.

What’s different about the new form?

• The USCIS has revised the list of acceptable documents in List C of the Form I-9. This list now includes a new document called the Consular Report of Birth Abroad (Form FS-240).  This form is issued to certain people born overseas to a U.S. citizen.  This Form is now listed as acceptable documentation.
• The USCIS has combined all the certifications of report of birth issued by the Department of State into one selection.  Therefore, the total number of separate List C categories are now 7 instead of 8.
• The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), the agency focused on preventing discrimination during the hiring process based upon employee’s citizenship, national origin or immigration status, has changed to the Immigrant and Employee Rights Section (“IER”).  Due to this name change, the new Form I-9 refers to IER instead of OSC.
• In the instructions on the new Form I-9, USCIS has removed the phrase “the end of” from the phrase “the first day of employment.”  This change clarifies that the section 1 of the form must be completed when the employee starts work for pay, rather than by the end of the day.

If you have any questions about filling out this form or any of the changes, please contact your labor and employment lawyer for advice.