Statewide Sick Leave May Be Coming Soon to New Jersey; New Jersey Minimum Wage Increase to Take Effect January 1, 2015; New Jersey Enacts “Ban the Box” Legislation

November 2014Employment Update

Statewide Sick Leave May Be Coming Soon to New Jersey
On October 27, 2014, the New Jersey State Assembly passed a bill that would require all New Jersey employers to provide mandatory paid sick leave to employees (the "Bill"). The Bill must be approved by Governor Christie before becoming law. If adopted, New Jersey will join Connecticut and California as the third state in the Country to enact a mandatory sick leave law.

Pending Statewide Sick Leave
Specifically, the Bill would require New Jersey employers to provide one hour of paid sick leave for every 30 hours worked for all employees who work in the State. Employers with fewer than 10 employees would be required to allow their employees to accrue up to 40 hours (i.e. 5 days) of paid sick leave per year. Employers with more than 10 employees, would be required to allow their employees to accrue up to 72 hours (i.e. 9 days) of paid sick leave per year. In determining the number of an employer's employees, full-time, part-time and temporary employees would be counted.

Sick leave would include time-off related to: (1) illness or injury for an employee or a family member, including preventative doctor's appointments; (2) circumstances arising from incidents of domestic violence; and (3) time during which an employee is unable to work due to a closure of the employee's workplace or the employee's child's school or place of care as a result of an order by a public official or a public health emergency.

Finally, the Bill contains anti-retaliation provisions that would preclude employers from taking adverse action against an employee who takes advantage of the sick leave benefits conferred under the law.

An aggrieved employee could file a civil action against the employer and may seek to recover actual damages suffered as a result of an employer's violation, as well as an equal amount of liquidated damages.

New Jersey Municipalities Enact Mandatory Sick Leave
Six local municipalities in New Jersey - Jersey City, Newark, Passaic, East Orange, Irvington and Paterson - have already enacted paid sick leave laws. Earlier this month, residents in both Trenton and Montclair voted to approve mandatory paid sick leave laws in those municipalities.

What This Means for You
While statewide sick leave legislation in New Jersey remains pending, employers in municipalities which have enacted mandatory sick leave ordinances should ensure that they are in compliance with those laws.

New Jersey Minimum Wage Increase to Take Effect January 1, 2015
New Jersey's minimum wage increase is scheduled to take effect on January 1, 2015. The minimum wage in New Jersey will increase by 13 cents an hour, from $8.25 to $8.38 per hour. Every January 1st thereafter, the minimum wage will be subject to increase based upon a formula tied to the Consumer Price Index.

Employers should be aware that the New Jersey minimum wage continues to exceed the federal minimum wage. Thus, although an employee's hourly wages may comply with federal law, such wages may not comply with New Jersey law.

What This Means for You
Employers should review the compensation paid to their employees in New Jersey to ensure compliance with the new minimum wage by January 1, 2015, and take the following steps:

  • Make any necessary payroll adjustments to ensure compliance with the new minimum wage; and
  • Update their minimum wage posters at the workplace.

New Jersey Enacts "Ban the Box" Legislation
On August 11, 2014, Governor Christie signed "The Opportunity to Compete Act" (the "Act"), also known as the "Ban the Box" law. The law, which takes effect March 1, 2015, prohibits New Jersey's private employers from asking job applicants about their criminal history during the early stages of the employment process.

New Jersey joins Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island, all of which have enacted similar "ban the box" laws covering private employers.

Covered Employers
The Act applies to private employers who: (i) employ 15 or more employees over 20 calendar weeks, and (ii) do business, employ persons, or take applications for employment in New Jersey.

What Is Prohibited
Under the Act, an employer may not do the following during the "initial employment application process": (i) require applicants to complete a job application that makes any inquiries regarding an applicant's criminal record, or (ii) make oral or written inquiry about an applicant's criminal history. Employers are also forbidden from posting job advertisements indicating that applicants who have been arrested or convicted of a crime will not be considered for employment.

The "initial employment application process" begins when an applicant or employer first inquires of the other about a prospective employment position or job vacancy, and ends when an employer has conducted a first interview of the applicant, whether in person or by any other means.

Once the initial employment application process has concluded, an employer is permitted to consider and inquire into the criminal history of the applicant and the applicant's criminal record (consistent with applicable state and federal law), and may refuse to hire the applicant based on the information received, unless the record was expunged or erased through executive pardon.

Exceptions
The Act does not apply in several circumstances:

  • where the applicant voluntarily discloses his or her criminal record during the initial employment application process;
  • to positions sought in law enforcement, corrections, the judiciary, homeland security or emergency management;
  • where the employer is required to run a criminal background check by law, rule, or regulation;
  • where an arrest or conviction would serve as a bar to employment under any law, rule, or regulation; or
  • where any law, rule, or regulation restricts an employer's ability to engage in specified business activities based on the criminal records of its employees.

Penalties
There is no private right of action under the Act. However, employers who violate the Act may be subject to civil penalties of up to $1,000 for a first violation, up to $5,000 for a second violation, and up to $10,000 for each subsequent violation.

What This Means for You
New Jersey employers should take the following steps to ensure compliance with the Act:

  • Review initial employment applications and remove any questions concerning the applicant's criminal history;
  • When posting advertisements or job postings for open positions and advertisements do not state that applicants who have been arrested or convicted of a crime will not be considered for employment;
  • Train those involved in the hiring process to ensure their awareness of the ban on criminal background inquiries during the application and initial interview process, absent one of the limited exceptions noted above; and
  • Wait to commence a criminal background check until after conducting the first interview.


Special thanks to Daniella M. Muller, an associate in the Employment Practice Group, for her assistance preparing this alert.


For more information on this issue or other employment matters, please contact:

Mara B. Levin at [email protected] or +1 212 592 1458 or
Carol M. Goodman at [email protected] or +1 212 592 1465.

Copyright © 2014 Herrick, Feinstein LLP. This alert is published by Herrick, Feinstein LLP for information purposes only.
Nothing contained herein is intended to serve as legal advice or counsel or as an opinion of the firm.