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New Jersey Enacts Leave Law for Domestic Violence Victims

July 24, 2013

On July 17, 2013, New Jersey Governor Christie signed into law the New Jersey Security and Financial Empowerment Act (the “NJ SAFE Act”), which provides an unpaid job-protected leave of absence from work to employees who are victims of domestic violence and sexually violent offenses. With the enactment of the NJ SAFE Act, New Jersey joins almost a dozen other jurisdictions (including California, Colorado, Florida, Illinois, Washington, and the District of Columbia) that have enacted similar laws.

Under the NJ SAFE Act, an eligible employee, who is a victim of domestic violence or a sexually violent offense, or whose child, parent, spouse, domestic partner or civil union partner is such a victim (i.e., a family member), is entitled to up to 20 days of unpaid leave during the 12-month period following the incident. The law applies to any employer with 25 or more employees for each working day during 20 or more calendar workweeks in the current or immediately preceding calendar year.

In order to be eligible for NJ SAFE leave, an employee must: (a) be employed for at least 12 months with the employer; and (b) have worked at least 1,000 base hours during the preceding 12-month period. Under the new law, each incident of domestic violence or sexual assault constitutes a separate offense for which an employee is entitled to unpaid leave, provided that the employee has not exhausted the allotted 20 days. NJ SAFE leave may be taken intermittently in intervals of no less than 1 day or as needed for any of the purposes provided under the law, which include:

  • Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee’s family member;
  • Obtaining services from a victim services organization for the employee or the employee’s family member;
  • Obtaining psychological or other counseling for the employee or the employee’s family member;
  • Participating in safety planning, temporary or permanent relocation, or taking other actions to increase the safety of the employee or the employee’s family member from future domestic or sexual violence or to ensure economic security;
  • Seeking 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
  • Attending, participating in or preparing for a criminal or civil court proceeding relating to the incident of domestic violence or sexual assault.

The legislation permits an employer to require that an employee (or the employee may elect to) use any accrued paid time off concurrently with NJ SAFE leave in order to receive compensation during this unpaid leave. Likewise, if an employee requests leave for a reason covered by the NJ SAFE Act as well as the federal Family and Medical Leave Act and/or the New Jersey Family Leave Act, the leave taken will count simultaneously against the employee's entitlement under each respective law.

Prior to taking NJ SAFE leave, an employee is required to provide the employer with advance written notice of the need for leave where the need is foreseeable. Notice must be provided as far in advance as is “reasonable and practical under the circumstances.” The law also provides that an employer may require an employee to provide documentation certifying the need for NJ SAFE leave. Sufficient documentation includes one or more or the following: (1) a domestic violence restraining order; (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 the employee’s family member is a victim of domestic violence or a sexually violent offense; or (6) any 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 provided the employee or the family member with assistance related to the incident.

Under the NJ SAFE Act, an employer is prohibited from rescinding or reducing an employee’s employment benefits accrued prior to taking NJ SAFE leave, or rescinding or reducing any employment benefits to which the employee is entitled unless doing so would have occurred regardless of the employee taking leave. The new law also contains strict anti-retaliation provisions. An employer is prohibited from taking adverse employment action or retaliating against an employee because the employee took or requested NJ SAFE leave, or because the employee refused to authorize the release of information deemed confidential.

The NJ SAFE Act also imposes confidentiality requirements upon employers. All information provided to an employer regarding NJ SAFE leave (including information regarding an employee’s failure to return to work) must be maintained in the strictest confidentiality, and cannot be disclosed unless the employee has consented to such disclosure in writing or disclosure is required by law. The Act also requires employers to post a notice of employees’ rights and obligations conspicuously in the workplace in the form to be provided by the N.J. Department of Labor and Workforce Development, and to use “other appropriate means” to notify employees of their rights under the law.

An employee who believes his/her employer has violated the Act can bring a civil suit against his/her employer within one year from the date of the alleged violation, with all common law tort action remedies available to the prevailing employee. The law also explicitly empowers a court to award a number of other remedies, including: (a) a civil fine between $1,000 and $2,000 for the first violation, and up to $5,000 for each subsequent violation; (b) injunctive relief; (c) the employee’s reinstatement to the same or an equivalent position held prior to the unlawful discharge or retaliatory action; (d) reinstatement of full fringe benefits and seniority rights; (e) compensation for any lost wages, benefits and other remuneration; and (f) payment of reasonable costs and attorney's fees.

The NJ SAFE Act goes into effect on October 1, 2013. Employers should prepare to implement this new law now by having employee handbooks updated to provide for this new leave entitlement. Employers should also take steps to implement the new notice posting requirement once the prescribed Notice becomes available, and to establish record keeping procedures to maintain the confidentiality of any documentation received or generated with regards to anticipated NJ SAFE leave requests. Employers are advised to consult with employment counsel concerning any questions regarding this new leave entitlement.

For more information, please contact:

Catherine P. Wells, Member of the Firm
(973) 530-2051 | cwells@wolffsamson.com  

Margaret O’Rourke Wood, Member of the Firm
(973) 530-2063 | mwood@wolffsamson.com  

Denise J. Pipersburgh, Associate
(973) 530-2090 | dpipersburgh@wolffsamson.com