Earlier this year, New Jersey Governor Phil Murphy signed into law a bill providing for an expansion of the New Jersey Family Leave Act (“NJFLA”) in important ways. Prior to this bill, the NJFLA required employers with 50 or more employees to provide employees up to 6 weeks of consecutive paid leave, or 42 days of intermittent leave in any 12-month period, to care for a sick family member.
This new bill expands those protections to cover smaller employers and to extend the amount of leave, among other things. Some of the bill’s most notable changes include:
- As of June 30, 2019, employers with 30 or more employees will be subject to the NJFLA’s leave requirements;
- For leave commencing on or after July 1, 2020, employees are permitted up to 12 weeks of consecutive leave (instead of 6), or 56 days of intermittent leave over a 12-month period;
- The definition of an applicable “family member” now includes not only children, parents and spouses, but also parents-in-law, siblings, grandparents, grandchildren, domestic partners, any individual related to the employee by blood, or even any individual who shares a relationship with the employee that is equivalent to a family relationship, including foster children and children who are born via a gestational carrier;
- Employees may also now take leave under the New Jersey Security and Financial Empowerment Act to care for any family member (as defined above) in the event of a domestic violence or sexually violent incident; and
- Employees can now receive 85% of their weekly wage from the State’s Family Leave Insurance program, with the maximum possible benefit increasing to 70% of New Jersey’s average weekly wage, meaning, based on current calculations, the maximum weekly benefit would increase from $650 to $860.
What does this mean for employers?
The bill’s expansion of who is covered under the NJFLA, the amount of leave required, and the increase in available compensation through the State’s Family Leave Insurance program presents new and unique challenges for employers. For the very first time, the bill requires employers with between 30 and 49 employees to provide its employees with paid leave to care for a sick family member. This can have dramatic consequences on the benefits provided by those employers to their employees. Even for employers already subject to the NJFLA, the bill increases, and in some cases doubles, the paid leave they are required to provide to their employees. Moreover, employees will be more likely to take full leave since the increase in benefits eases the financial burden of doing so. Covered employers must now prepare for employees to take longer absences in the face of sudden and/or planned health conditions, pregnancies/births, adoptions, and even the placement of children into foster care.
Next steps for employers?
Given this information, below are three action items New Jersey employers should take into consideration when preparing to their workplace for the implementation of this expansion of the NJFLA
1. Review your employee handbook and modify certain policies
The employee handbook is frequently the most basic protection an employer has to ensure compliance with employment laws. Most employee handbooks provide for employees to take leave to care for themselves and/or a sick family member. An employer may open itself up to liability under the NJFLA if its handbook conflicts with the Act’s minimum requirements. In most cases, a simple update of the employee handbook can help employers become compliant with the NJFLA’s new requirements and avoid liability for failing to provide sufficient paid leave. Many employers will also want to ensure employees are using their paid leave concurrently to minimize any disruption.
2. Provide training to managers and supervisors to ensure compliance with the NJFLA
As managers and supervisors are typically directly responsible for granting employees leave and accounting for subsequent absences, it is critical that managers and supervisors be familiar with the NJFLA’s requirements. The best way to ensure such familiarity is to train managers so that they understand and carry out the company’s policies concerning paid leave, as well as the NJFLA’s requirements.
3. Documentation
Thorough and precise documentation will help support any decision to deny an employee’s request for leave to care for a sick family member that is later challenged. Document every decision granting or denying any employee’s request for paid leave, as this will help demonstrate uniformity in the employer’s decision-making. Further, the NJFLA permits employers to request written proof of covered occurrences, such as medical notes from an employee’s family member’s doctors. Employers should not hesitate to exercise this right under the NJFLA, and should adopt policies urging managers to do so.
If you have any questions about this legal alert or if you run across a paid family or sick leave issue in your workplace, please feel free to contact Adam Gersh, Jeremy Cole, or any other member of Flaster Greenberg’s Labor & Employment Department.
Non-compete and other restrictive covenants are commonly used by employers in many industries to protect their trade secrets and legitimate business interests. While employees may be willing to sign them when they take a new position, they are often frustrated by them when it comes time to look for a new job. Some employees take to Google to see if their agreement is enforceable. What they find on Google often provides them with false confidence that their non-compete or other restrictive covenant is unenforceable, but relying on Google research in the complicated, fact-sensitive legal morass of non-compete agreements is risky business. True, a Google search can turn up numerous court opinions that express the view that non-competes are viewed unfavorably by courts as anti-competitive restraints on trade and, as such, are narrowly construed and enforced only to the extent that they protect a legitimate business interest of an employer. However, those cases may or may not be useful in deciding whether your restrictive covenant is likely to be enforced. First, the law governing non-competition agreements varies from state to state. Thus, an opinion by a court in California applying California law (which bars enforcement of restrictive covenants except under specific, narrow circumstances), for example, is of little help in assessing whether a court in New Jersey or Pennsylvania, where non-competes are routinely enforced, is likely to enforce a restrictive covenant under that state’s laws. Making the analysis even more complicated, courts decide whether to enforce restrictive covenants based upon a thorough review of the specific language used in the agreement; even slight variations in the language of the agreement can lead to vastly different results. In addition, because they are viewed as anti-competitive, a court will generally enforce one only if it is well drafted so that its restrictions narrowly target the business interests at issue and nothing more. The finer points of enforcing restrictive covenants, such as non-competes, are too detailed to address here, but employees with employment agreements that contain restrictive covenants and businesses that are hiring employees subject to them should not rely on Google to assess their enforceability or their liability for a breach.
The U.S. Court of Appeals for the Sixth Circuit sided with a church operating the Lord’s Buffet and against the Department of Labor (“DOL”) in a case testing the reach of the Fair Labor Standards Act (“FLSA”). In Acosta v. Cathedral Buffet, Inc., the appellate court reversed a trial court ruling and held that volunteers who staffed a church-operated buffet are not employees and the Grace Cathedral Church did not run afoul of the FLSA by failing to pay the volunteers minimum wage. The DOL claimed the church and its televangelist pastor illegally used unpaid labor by staffing its buffet with volunteers from the congregation. In this case, the church operated the buffet restaurant for a religious purpose: to allow church members to proselytize to patrons. Its operations relied heavily on church volunteers who worked alongside paid employees performing the same work. While the work performed was comparable to that of an employee, the Sixth Circuit held the DOL overstepped the bounds of the FLSA by applying it to the volunteer workforce. In part, the Court’s decision relied on a determination that the volunteers had no expectation of payment and were not economically reliant on the work of the church. 
In Malee v. Anthony & Frank Ditomaso, Inc., the Court served a surprise to a shareholder of a corporation that owned a restaurant, who sought to be dismissed from a FLSA case brought by employees of the restaurant. The shareholder alleged he did not participate in the business on a day-to-day basis and, therefore, was not an “employer” within the meaning of the FLSA. The Court refused to dismiss the claims, finding that the shareholder’s attendance at staff meetings, and advice on operating the business created a triable issue of fact as to whether the shareholder was, in fact, an employer within the meaning of the FLSA.
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