ASSEMBLY, No. 1117

STATE OF NEW JERSEY

217th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION

 


 

Sponsored by:

Assemblywoman  SHEILA Y. OLIVER

District 34 (Essex and Passaic)

Assemblywoman  PAMELA R. LAMPITT

District 6 (Burlington and Camden)

Assemblyman  JAMEL C. HOLLEY

District 20 (Union)

 

 

 

 

SYNOPSIS

     Establishes the “New Jersey Schedules That Work Act.”

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel.

  


An Act concerning employee work schedule changes and supplementing Title 34 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    This act shall be known and may be cited as the “New Jersey Schedules That Work Act.”

 

     2.    As used in this act:

     “Bona fide business reason” means the following: identifiable burden of significant additional costs to an employer, including the cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another facility; a significant detrimental effect on the employer’s ability to meet organizational needs or customer demand; a significant detrimental effect on business performance; insufficiency of work during the periods an employee proposes to work; or the need to balance competing scheduling requests when it is not possible to grant all such requests without a significant detrimental effect on the employer’s ability to meet organizational needs.

     “Career related educational or training program” means an educational or training program or program of study offered by a public, private, or nonprofit career and technical education school, institution of higher education, or other entity that provides academic education, career and technical education, or training, including remedial education or English as a second language, that is a program that leads to a recognized postsecondary credential and provides career awareness information.

     “Caregiver” means an individual with the status of being a significant provider of ongoing care or education, including responsibility for securing or providing the ongoing care or education of a child, or responsibility for securing or providing the ongoing care of a person with a serious health condition who is in a family relationship with the individual or a parent of the individual who is 65 years of age or older.

     "Child" means a biological, adopted, or foster child, stepchild or legal ward of a covered individual, child of a domestic partner of the covered individual, or child of a civil union partner of the covered individual, who is less than 19 years of age or is 19 years of age or older but incapable of self-care because of mental or physical impairment.

     "Civil union" means a civil union as defined in section 2 of P.L.2006, c.103 (C.37:1-29).

     "Domestic partner" means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).

     “Employee” means any individual who is suffered or permitted to work by an employer.

     "Employer" means a person or corporation, partnership, individual proprietorship, joint venture, firm, company, or other similar legal entity, or successor thereof, which engages the services of an employee, and which employs 15 or more employees. For purposes of determining the number of employees who work for an employer, all employees performing work for compensation on a full time, part time, or temporary basis shall be counted, except that if the number of employees who perform work for an employer for compensation fluctuates, the number may be determined for a calendar year based upon the average number of employees who performed work for the employer for compensation during the preceding calendar year. “Employer” includes any individual who acts, directly or indirectly, in the interest of the employer to any of the employer’s employees and includes any successor. “Employer” includes the State, any political subdivision thereof, and all public offices, agencies, authorities, boards, or bodies.

     “Family relationship” means a relationship with a child, spouse, civil union partner, domestic partner, parent, grandchild, grandparent, sibling, or parent of a spouse or domestic partner.

     “Minimum number of expected work hours” means the minimum number of hours an employee will be assigned to work on a weekly or monthly basis.

     “Part time employee” means an employee who works fewer than 30 hours per week on average during any one month period.

     “Retail, food service, or cleaning employee” means an individual employee who is employed in any of the following occupations, as described by the Bureau of Labor Statistics Standard Occupational Classification System: retail sales occupations consisting of occupations described in 41-1010 and 41-2000, and all subdivisions thereof, of the Standard Occupational Classification System, which includes first line supervisors of sales workers, cashiers, gaming change persons and booth cashiers, counter and rental clerks, parts sales persons, and retail sales persons; food preparation and serving related occupations as described in 35-0000, and all subdivisions thereof, of the Standard Occupational Classification System, which includes supervisors of food preparation and serving workers, cooks and food preparation workers, food and beverage serving workers, and other food preparation and serving related workers; and building cleaning occupations as described in 37-2011, 37-2012, and 37-2019 of the Standard Occupational Classification System, which includes janitors and cleaners, maids and housekeeping cleaners, and building cleaning workers. “Retail, food service, or cleaning employee” does not mean any employee employed in a bona fide executive, administrative, or professional capacity as defined in section 13(a)(1) of the “Fair Labor Standards Act of 1938,” 29 U.S.C. 213(a)(1).

     "Serious health condition" means an illness, injury, impairment or physical or mental condition which requires: inpatient care in a hospital, hospice, or residential medical care facility; or continuing medical treatment or continuing supervision by a health care provider.

     “Split shift” means a schedule of daily hours in which the hours worked are not consecutive, except that a schedule in which the total time out for meals does not exceed one hour shall not be treated as a split shift.

     “Work schedule” means those days and times within a work period when an employee is required by an employer to perform the duties of the employee’s employment for which the employee will receive compensation.

     “Work schedule change” means any modification to an employee’s work schedule, such as an addition or reduction of hours, cancellation of a shift, or a change in the date or time of a work shift, by an employer.

     “Work shift” means the specific hours of the workday during which an employee works.

 

     3.    a.  An employee may apply to the employee’s employer to request a change in the terms and conditions of employment as they relate to the following:

     (1)   the number of hours the employee is required to work or be on call for work;

     (2)   the times when the employee is required to work or be on call for work;

     (3)   the location where the employee is required to work;

     (4)   the amount of notification the employee receives of work schedule assignments;

     (5)   minimizing fluctuations in the number of hours the employee is scheduled to work on a daily, weekly, or monthly basis; and

     (6)   whether or not the request is because of any of the reasons set forth in subsection c. of this section.

     b.    If an employee applies to the employee’s employer to request a change in the terms and conditions of employment as set forth in subsection a. of this section, then the employer shall engage in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee’s needs. This process shall result in the employer either granting or denying the request. In the event of a denial the employer shall:

     (1)   consider alternatives to the proposed change that might meet the employee’s needs;

     (2)   grant or deny a request for an alternative change in the terms and conditions of employment as set forth in subsection a.; and

     (3)   state the reason for any denial.

     If information provided by the employee making a request for a change requires clarification, the employer shall explain what further information is needed and give the employee reasonable time to produce the information.

     c.     If an employee makes a request for a change in the terms and conditions of employment as set forth in subsection a. of this section because of a serious health condition of the employee, due to the employee’s responsibilities as a caregiver, or due to the employee’s enrollment in a career related educational or training program, or if a part time employee makes a request for such a change for a reason related to a second job, the employer shall grant the request, unless the employer has a bona fide business reason for denying the request.

     d.    If an employee makes a request for a change in the terms and conditions of employment as set forth in subsection a. of this section, for a reason other than those reasons set forth in subsection c. of this section, then the employer may deny the request for any reason that is not unlawful, but shall comply with the applicable provisions of subsections b. and e. of this section, including providing the employee with the reason for the denial, including whether the reason for the denial was a bona fide business reason.

     e.     If an employee makes any request for a change in the terms and conditions of employment as provided for in this section in writing, the employer shall provide a written response.

 

     4.    a.  An employer shall pay a retail, food service, or cleaning employee the following:

     (1)   at least four hours at the employee’s regular rate of pay for each day on which the retail, food service, or cleaning employee reports for work under specific instructions but is given less than four hours of work, except that if the retail, food service, or cleaning employee’s scheduled hours are less than four hours, the retail, food service, or cleaning employee shall be paid for the employee’s scheduled hours for that day if given less than the scheduled hours of work; and

     (2)   at least one hour at the employee’s regular rate of pay for each day the retail, food service, or cleaning employee is given specific instructions to contact the employer, or wait to be contacted by the employer, less than 24 hours in advance of the start of a potential work shift to determine whether the employee must report to work for that shift.

     b.    An employer shall pay a retail, food service, or cleaning employee for one additional hour at the employee’s regular rate of pay for each day during which the employee works a split shift.

     c.     The employer shall provide any retail, food service, or cleaning employee the following advance notification:

     (1)   on or before a new employee’s first day of work, in writing, the employee’s work schedule and minimum number of expected work hours the employee will be assigned to work per month; and

     (2)   a new work schedule, in writing, not less than 14 days before the first day of the new work schedule if the employee’s work schedule changes from the work schedule for which the employee was notified pursuant to paragraph (1) of this subsection. If the minimum number of work hours the employee will be assigned changes, then the employer shall provide written notification of that change, not less than 14 days in advance of the first day the change will go into effect. Nothing in this subsection shall be construed to prohibit an employer from providing greater advance notice of a retail, food service, or cleaning employee’s work schedule than is required under this section.

     An employer may use, in addition to the written notices required by this subsection, any additional means to notify an employee of the employee’s work schedule.

     d.    An employer may make work schedule changes as needed, including by offering additional hours of work to a retail, food service, or cleaning employee beyond those previously scheduled, but an employer shall be required to provide one extra hour of pay at the retail, food service, or cleaning employee’s regular rate for each shift that is changed with less than 24 hours’ notice, except in the case of the need to schedule the employee due to the unforeseen unavailability of an employee previously scheduled to work that shift.

     e.     Every employer employing any retail, food service, or cleaning employee shall post the schedule of all retail, food service, or cleaning employees in every establishment where any retail, foods service, or cleaning employee is employed and keep it posted in a conspicuous place so as to permit the employee to observe readily a copy. Availability of that schedule by electronic means accessible by all retail, food service, or cleaning employees of that employer shall be considered compliance with this subsection.

     f.     Nothing in this section shall be construed to prevent an employer from allowing a retail, food service, or cleaning employee to work in place of another employee who has been scheduled to work a particular shift as long as the change in schedule is mutually agreed upon by the employees. An employer shall not be subject to the requirements of paragraph (2) of subsection c. of this section or subsection d. of this section for voluntary shift trades.

     g.    The requirements of this section shall not apply during periods when regular operations of the employer are suspended due to events beyond the employer’s control.

 

     5.    a.  It shall be unlawful for any employer to interfere with, restrain, or deny the exercise or the attempt to exercise, any right of an employee as set forth in sections 3 or 4 of this act. It shall be unlawful for any employer to discharge, threaten to discharge, demote, suspend, reduce work hours of, or take any other adverse employment action against any employee in retaliation for exercising the rights of an employee under this act or opposing any practice made unlawful by this act. For purposes of section 3 of this act, retaliation shall include taking an adverse employment action against any employee on the basis of that employee’s eligibility or perceived eligibility to request or receive a change in the terms and conditions of employment, as described in that section, on the basis of a reason set forth in subsection c. of section 3 of this act.

     b.    It shall be unlawful for any employer to discharge, threaten to discharge, demote, suspend, reduce work hours of, take any other adverse employment action against any employee, or in any other manner discriminate against any employee because that employee has:

     (1)   filed any charge or complaint, or has instituted or caused to be instituted any proceeding, under or related to this act;

     (2)   given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this act; or

     (3)   testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this act.

 

     6.    a.  The commissioner shall receive, investigate, and attempt to resolve complaints of violations of this act and may issue an order making determinations and the assessment of a civil penalty to be paid by an employer who violates the provisions of this act in an amount not to exceed $500 for the first violation, $1,000 for the second violation, and $5,000 for each subsequent violation, collectible by the commissioner in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

     b.    The commissioner may bring an action in any court of competent jurisdiction on behalf of an aggrieved employee to:

     (1)   restrain violations of this act;

     (2)   award equitable relief as may be appropriate, including employment, reinstatement, and promotion; and

     (3)   recover the compensation and damages described in paragraphs (3) through (5) of subsection a. of section 7 of this act.

     c.     In the case of a failure to make payments to employees required pursuant to subsection a. of section 4 of this act, the commissioner may, as an alternative to any other sanctions or in addition thereto, supervise the payment to the employees of the amounts due and collect administrative fees in the manner provided by section 24 of P.L.1966, c.113 (C.34:11-56a23).

 

     7.    a.  Upon a violation of any of the provisions of this act, an employee may institute a civil action in the Superior Court for relief. All remedies available in common law tort actions shall be available to a prevailing plaintiff. The court may also order any or all of the following relief:

     (1)   an injunction to restrain the continued violation of any of the provisions of this act;

     (2)   reinstatement of the employee to the same position or to a position equivalent to that which the employee held prior to any unlawful discharge or retaliatory action;

     (3)   compensation for any wages, benefits and other remuneration denied, lost, or owed to the employee by reason of the violation;

     (4)   in a case in which wages, benefits and other remuneration have not been denied, lost, or owed to the employee, compensation for any actual monetary losses sustained by the employee as a direct result of the violation;

     (5)   an additional amount of compensation as liquidated damages equal to the amount described in paragraph (3) or (4) of this subsection;

     (6)   payment of reasonable costs and attorney's fees.

     b.    The right provided by subsection a. of this section to institute a civil action shall terminate upon the filing of a complaint by the commissioner in an action under subsection b. of section 6 of this act in which a recovery is sought of the damages described in paragraph (3) of subsection a. of this section, unless the action described is dismissed without prejudice on motion of the commissioner.

     c.     An action may be brought under this section not later than two years after the date of the last event constituting the alleged violation for which the action is brought.

 

     8.    a.  Every employer subject to the provisions of this act shall post and keep conspicuously posted, in the establishment and location where notices or postings to employees and applicants for employment are customarily posted, a notice, to be furnished by the Department of Labor and Workforce Development, setting forth excerpts from, or summaries of, the pertinent provisions of this act and information pertaining to the filing of a complaint under this act.

     b.    Each employer of an employee subject to the provisions of section 4 of this act shall keep and make available to the department upon request, as part of the wage records required pursuant to section 21 of P.L.1966, c.113 (C.34:11-56a20), a record of each instance in which the employer is required by the provisions of subsection a of section 4 of this act to make wage payments to the employee and the amount of wages paid in each instance.

 

     9.    This act shall not be construed to preempt, limit, or otherwise affect the applicability of any other federal, State or local law, ordinance, regulation, requirement, policy, or standard that provides rights or benefits to employees which are more favorable to employees than those required by this act or which provide rights or benefits to employees not covered by this act.

 

     10.  No provision of this act, or any regulations promulgated to implement or enforce this act, shall be construed as:

     a.     Requiring an employer to reduce, or justifying an employer in reducing, rights or benefits provided by the employer pursuant to an employer policy or collective bargaining agreement which are more favorable to employees than those required by this act or which provide rights or benefits to employees not covered by this act; or

     b.    Preventing or prohibiting the employer from agreeing, through a collective bargaining agreement or employer policy, to provide rights or benefits which are more favorable to employees than those required by this act or to provide rights or benefits to employees not covered by this act.

 

     11.  This act shall take effect on the first day of the fourth month next following the date of enactment.

 

 

STATEMENT

 

     This bill enacts the “New Jersey Schedules That Work Act.” The bill provides that employees may request a change to their work schedules without fear of retaliation, and requires that employers consider these requests. The bill also requires employers to provide more predictable and stable schedules for employees in certain low wage occupations. For purposes of the bill, “employer” is defined as any employer that employs 15 or more employees.

     The bill permits employees to apply to their employer to request a change in the terms and conditions of employment as they relate to the following: the number of hours the employee is required to work or be on call for work; the times when the employee is required to work or be on call for work; the location where the employee is required to work; the amount of notification the employee receives of work schedule assignments; and minimizing fluctuations in the number of hours the employee is scheduled to work on a daily, weekly, or monthly basis.

     If an employee applies to the employer to request a change in the terms and conditions of employment, then the employer must engage in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee’s needs. This process must result in the employer either granting or denying the request.

     The bill provides that if an employee makes a request for a change in the terms and conditions of employment because of a serious health condition of the employee, due to the employee’s responsibilities as a caregiver, or due to the employee’s enrollment in a career related educational or training program, or if a part time employee makes a request for such a change for a reason related to a second job, then the employer must grant the request, unless the employer has a bona fide business reason for denying the request.

     The bill also requires an employer to pay any retail, food service, or cleaning employee the following:

     1.    At least four hours at the employee’s regular rate of pay for each day on which the retail, food service, or cleaning employee reports for work under specific instructions but is given less than four hours of work, except that if the retail, food service, or cleaning employee’s scheduled hours are less than four hours, the retail, food service, or cleaning employee must be paid for the employee’s scheduled hours for that day if given less than the scheduled hours of work; and

     2.    At least one hour at the employee’s regular rate of pay for each day the retail, food service, or cleaning employee is given specific instructions to contact the employer, or wait to be contacted by the employer, less than 24 hours in advance of the start of a potential work shift to determine whether the employee must report to work for that shift.

An employer must pay any retail, food service, or cleaning employee one additional hour at the employee’s regular rate of pay for each day during which the employee works a split shift.

     The bill also requires an employer to provide any retail, food service, or cleaning employee the following advance notification regarding the employee’s work schedule:

     1.    On or before a new employee’s first day of work, in writing, the employee’s work schedule and minimum number of expected work hours the employee will be assigned to work per month; and

     2.    A new work schedule, in writing, not less than 14 days before the first day of the new work schedule if the employee’s work schedule changes from the work schedule for which the employee was previously notified as a new employee, and if the minimum number of work hours the employee will be assigned changes, then the employer shall provide notification of that change, not less than 14 days in advance of the first day the change will go into effect.

     The bill provides that an employer of any retail, food service, or cleaning employee may make work schedule changes as needed, including by offering additional hours of work to the employee beyond those previously scheduled, but an employer must provide one extra hour of pay at the retail, food service, or cleaning employee’s regular rate for each shift that is changed with less than 24 hours’ notice, except in the case of the need to schedule the employee due to the unforeseen unavailability of an employee previously scheduled to work that shift.

     The bill requires every employer employing any retail, food service, or cleaning employee to post the work schedule and keep it posted in a conspicuous place in every establishment where any retail, food service, or cleaning employee is employed so as to permit the employee to observe it.

     The bill makes it an unlawful employment practice for any employer to interfere with, restrain, or deny the exercise or the attempt to exercise, any right of an employee as set forth in the bill. Under the bill, it is unlawful for any employer to discharge, threaten to discharge, demote, suspend, reduce work hours of, or take any other adverse employment action against any employee in retaliation for exercising the rights of an employee under the bill or opposing any practice made unlawful by the bill.

     The Commissioner of Labor and Workforce Development may file a complaint on behalf of an employee, and may also assess a civil penalty to be paid by an employer who violates the provisions of the bill. The bill also provides that an employee may institute a civil action in the Superior Court for relief. However, the right of an employee to institute a civil action shall terminate upon the filing of a complaint by the commissioner.

     The bill requires every employer subject to the provisions of the bill to post and keep conspicuously posted, in the establishment and location where notices or postings to employees and applicants for employment are customarily posted, a notice setting forth the pertinent provisions of the bill.

     Finally, the bill states that nothing contained therein will be construed to preempt, limit, or otherwise affect the applicability of any other federal, State or local law, ordinance, regulation, requirement, policy, or standard that provides rights or benefits to employees which are more favorable to employees than those required by the bill or which provide rights or benefits to employees not covered by the bill.