ASSEMBLY, No. 1529

STATE OF NEW JERSEY

212th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2006 SESSION

 


 

Sponsored by:

Assemblywoman SHEILA Y. OLIVER

District 34 (Essex and Passaic)

 

 

 

 

SYNOPSIS

     Sets and enforces minimum standards for paid time off from work.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act providing minimum standards for paid time off from work and amending and supplementing P.L.1966, c.113.

 

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

 

     1.  (New section)  a.  Every employee shall accrue an amount of paid time off of not less than 48 hours for each six-month period of full-time work for an employer, or, if the employee works less than full time, an amount of paid time off of not less than 48 hours times the number of hours worked by the employee for the employer during the six-month period divided by 1,000.  The employer shall permit the employee to use the accrued paid time off at any time during that one-year period following the six-month period of accrual, if the employee meets the following requirements and conditions:

     (1)  If the paid time off is used for sick leave or family care leave and the need for the leave is foreseeable, the employer may require an employee to notify the employer of the leave not less than 14 days in advance of the leave, except that the notice may be given less than 14 days in advance if the need becomes foreseeable during the 14-day period;

     (2)  If the paid time off is used for sick leave or family care leave and the leave continues longer than three consecutive days, the employer may require the employee to provide documentation of the illness from qualified medical personnel;

     (3)  If the paid time off is used for vacation or personal holiday leave, the employer may require the employee to notify the employer of the leave not less than 30 days in advance of the leave;

     (4)  If the paid time off is used for bereavement leave, the employer may require the employee to provide documentation regarding the bereavement; and

     (5)  An employer may require that the leave be taken in periods, each of which is not less than one half of a workday.

     An employer may permit the employee to use the paid time off at times other than the one-year period following the period of accrual.

     b.  For any amount of paid time off in excess of the minimum amount required pursuant to subsection a. of this section, but only for that excess amount, an employer may designate how much of that paid time, if any, is specifically designated for each of the following uses: sick leave; family care leave; bereavement leave; personal holiday leave; vacation; or other purposes.

     c.  This section shall not be construed as extending the maximum period of leave to which an employee is entitled pursuant to the State "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.), the federal "Family and Medical Leave Act of 1993" (29 U.S.C. 2611 et seq.), or the combination of the two acts.

     d.  No provision of this section shall be deemed to authorize or justify an employer in reducing rights to paid time off provided to employees by the employer or required by a collective bargaining agreement which are greater than the rights to paid time off provided to employees by this section.  Nor shall any provision of this section, or regulation adopted to implement or enforce this section, be construed as prohibiting the negotiation and provision through collective bargaining agreements of amounts of paid time off in excess of that required by this section or requirements regarding the use of paid time off which are less restrictive for employees than those provided by this section.  This provision shall apply regardless of the date that a collective bargaining agreement takes effect.

 

     2.  Section 2 of P.L.1966, c.113 (C.34:11-56a1) is amended to read as follows:

     2.  As used in this act:

     (a)  "Commissioner" means the Commissioner of Labor.

     (b)  "Director" means the director in charge of the bureau referred to in section 3 of this act.

     (c)  "Wage board" means a board created as provided in section 10 of this act.

     (d)  "Wages" means any moneys due an employee from an employer for services rendered or made available by the employee to the employer as a result of their employment relationship including commissions, bonus and piecework compensation and including any gratuities received by an employee for services rendered for an employer or a customer of an employer and the fair value of any food or lodgings supplied by an employer to an employee. The commissioner may, by regulation, establish the average value of gratuities received by an employee in any occupation and the fair value of food and lodging provided to employees in any occupation, which average values shall be acceptable for the purposes of determining compliance with this act in the absence of evidence of the actual value of such items.

     (e)  "Regular hourly wage" means the amount that an employee is regularly paid for each hour of work as determined by dividing the total hours of work during the week into the employee's total earnings for the week, exclusive of overtime premium pay.

     (f)  "Employ" includes to suffer or to permit to work.

     (g)  "Employer" includes any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.

     (h)  "Employee" includes any individual employed by an employer.

     (i)  "Occupation" means any occupation, service, trade, business, industry or branch or group of industries or employment or class of employment in which employees are gainfully employed.

     (j)  "Minimum fair wage order" means a wage order promulgated pursuant to this act.

     (k)  "Fair wage" means a wage fairly and reasonably commensurate with the value of the service or class of service rendered and sufficient to meet the minimum cost of living necessary for health.

     (l)  "Oppressive and unreasonable wage" means a wage which is both less than the fair and reasonable value of the service rendered and less than sufficient to meet the minimum cost of living necessary for health.

     (m)  "Limousine" means a motor vehicle used in the business of carrying passengers for hire to provide prearranged passenger transportation at a premium fare on a dedicated, nonscheduled, charter basis that is not conducted on a regular route and with a seating capacity in no event of more than 14 passengers, not including the driver, provided, that such a motor vehicle shall not have a seating capacity in excess of four passengers, not including the driver, beyond the maximum passenger seating capacity of the vehicle, not including the driver, at the time of manufacture. "Limousine" shall not include taxicabs, hotel or airport shuttles and buses, buses employed solely in transporting school children or teachers to and from school, vehicles owned and operated directly or indirectly by businesses engaged in the practice of mortuary science when those vehicles are used exclusively for providing transportation related to the provision of funeral services or vehicles owned and operated without charge or remuneration by a business entity for its own purposes.

     (n)  "Bereavement leave" means leave taken by an employee for bereavement in the death of a family member of the employee.

     (o)  "Child" means a biological, foster or adopted child, a stepchild or a legal ward.

     (p)  “Family care leave” means leave taken by an employee to attend to an illness, injury, disability or medical condition of a family member of the employee.

     (q)  “Family member” means a child, parent, grandparent or spouse of an employee.

     (r)  "Paid time off" means accrued increments of leave provided at full pay by an employer to an employee as a benefit of employment for use by the employee during an absence from the employment for sick leave, family care leave, bereavement leave, vacation or personal holiday leave.  "Paid time off" does not include any benefit paid under an employee welfare benefit plan subject to the "Employee Retirement Income Security Act of 1974," P.L.93-406 (29 U.S.C. 1001 et seq.) and does not include any insurance benefits, workers’ compensation benefits, unemployment compensation, temporary disability benefits or Social Security benefits.

     (s)  "Parent" means a biological, foster or adoptive parent, a step parent, parent-in-law or legal guardian.

     (t)  "Personal holiday leave" means holiday leave taken by an employee on a day other than a public holiday as designated in R.S.36:1-1.

     (u)  "Sick leave" means leave taken by an employee to obtain a physical examination or a professional diagnosis or treatment for an illness, injury or medical condition, or taken because of the employee’s inability to perform duties of employment due to an illness, injury, medical condition or disability, including disability due to pregnancy.

(cf: P.L.2001, c.416, s.2)

 

     3.  Section 6 of P.L.1966, c.113 (C.34:11-56a5) is amended to read as follows:

     6.  For any occupation for which no wage order issued pursuant to section 17 of this act is in effect, the commissioner shall, within 6 months after the rate provided in section 5 is in effect, make such administrative regulations as he shall deem appropriate to carry out the purposes of this act or necessary to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates hereby established.  Such regulations may include regulations defining and governing outside salesmen; learners and apprentices, their number, proportion and length of service; part-time pay; bonuses, overtime pay; special pay for special or extra work; or permitted charges to employees or  allowances for board, lodging, apparel or other facilities or services customarily furnished by employers to employees; or allowances for such other special conditions or circumstances.  The commissioner shall adopt regulations to implement the provisions of P.L.    , c.    (C.      ) (now before the Legislature as this bill) regarding paid time off, including the provisions requiring employees to give advanced notice and documentation in connection with paid time off and the provisions of P.L.1966. c.113 (C.34:11-56a et seq.) requiring employers to keep and make available records.

     The commissioner shall [publish such] promulgate these regulations [as he proposes to issue and such regulations may be issued pursuant to this section only after a public hearing, subsequent to publication of notice of the hearing, at which any person may be heard] pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

     Such administrative regulations shall remain in effect only until such time as a wage order governing the occupation or occupations
concerned, and to the extent inconsistent therewith, has been promulgated and becomes effective as provided in this act.

(cf: P.L.1966, c.113, s.6)

 

     4.  Section 21 of P.L.1966, c.113 (C.34:11-56a20) is amended to read as follows:

     21.  Every employer of employees subject to this act shall keep a true and accurate record of the hours and overtime hours worked by each [and] employee, the wages paid by him to each employee, and the hours of paid time off accrued and used by each employee and shall furnish to the commissioner or the director or their authorized representative upon demand a sworn statement of the same.  Such records shall be open to inspection by the commissioner or the director or their authorized representative and by each employee or authorized representative of the employee at any reasonable time. No employer shall be found guilty of violating this provision for failure to keep a true and accurate record of the hours worked by outside salesmen, buyers of poultry, eggs, cream, milk or other perishable commodities in their natural or raw state, homeworkers legally employed in accordance with the laws of this State or any person employed in a bona fide executive, administrative or professional capacity, except that no exemption from record keeping pursuant to this section in regard to any person employed in a bona fide executive, administrative or professional capacity shall be construed to permit an employer to pay wages at a rate which violates the provisions of section 5 of P.L.1966, c.113 (C.34:11-56a4).

(cf: P.L.1993, c.91, s.1)

 

     5.  Section 22 of P.L.1966, c.113 (C.34:11-56a21) is amended to read as follows:

     22.  Every employer subject to any provision of this act or of any regulations or orders issued under this act shall keep a summary of this act approved by the commissioner, and copies of any [applicable] wage [orders] order applicable to the particular employer and regulations issued under this act, or a summary of such wage orders and regulations, posted in a conspicuous and accessible place in or about the premises wherein any person subject thereto is employed and shall annually distribute to each employee, a written summary of the provisions of P.L.1966, c.113 (C.34:11-56a et seq.), including all applicable provisions regarding minimum standards for wages, overtime pay and paid time off, which shall be in English and in the language spoken by the majority of the employer's employees, if that language is not English.  Employers shall be furnished copies of such summaries, orders, and regulations by the State on request without charge, and, in the case of the summaries to be annually distributed to employees, each employer requesting the summary shall be, without charge, furnished a copy suitable for reproduction by the employer.

(cf: P.L.1966, c.113, s.22)

 

     6.  Section 23 of P.L.1966, c.113 (C.34:11-56a22) is amended to read as follows:

     23.  Any employer who willfully hinders or delays the commissioner, the director or their authorized representatives in the performance of his duties in the enforcement of this act, or fails to make, keep, and preserve any records as required under the provisions of this act, or falsifies any such record, or refuses to make any such record accessible to the commissioner, the director or their authorized representatives upon demand, or refuses to furnish a sworn statement of such record or any other information required for the proper enforcement of this act to the commissioner, the director or their authorized representatives upon demand, or pays or agrees to pay wages, overtime wages or paid time off at a rate less than the rate applicable under this act or any wage order issued pursuant thereto, or otherwise violates any provision of this act or of any regulation or order issued under this act shall be guilty of a disorderly persons offense and shall, upon conviction for a first violation, be punished by a fine of not less than $100 nor more than $1,000 or by imprisonment for not less than 10 nor more than 90 days or by both the fine and imprisonment and, upon conviction for a second or subsequent violation, be punished by a fine of not less than $500 nor more than [$1,000] $2,000 or by imprisonment for not less than 10 nor more than [100] 120 days or by both the fine and imprisonment. Each week, in any day of which an employee is paid less than the rate applicable to him under this act or under a minimum fair wage order, and each employee so paid, shall constitute a separate offense.

     As an alternative to or in addition to any other sanctions provided by law for violations of the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), when the Commissioner of Labor finds that an individual has violated that act, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of [$250] $2,500 for a first violation and up to a maximum of [$500] $5,000 for each subsequent violation, specified in a schedule of penalties to be promulgated as a rule or regulation by the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). When determining the amount of the penalty imposed because of a violation, the commissioner shall consider factors which include the history of previous violations by the employer, the seriousness of the violation, the good faith of the employer and the size of the employer's business.  No administrative penalty shall be levied pursuant to this section unless the Commissioner of Labor provides the alleged violator with notification of the violation and of the amount of the penalty by certified mail and an opportunity to request a hearing before the commissioner or his designee within 15 days following the receipt of the notice.  If a hearing is requested, the commissioner shall issue a final order upon such hearing and a finding that a violation has occurred.  If no hearing is requested, the notice shall become a final order upon expiration of the 15-day period.  Payment of the penalty is due when a final order is issued or when the notice becomes a final order.  Any penalty imposed pursuant to this section may be recovered with costs in a summary proceeding commenced by the commissioner pursuant to ["the penalty enforcement law" (N.J.S.2A:58-1 et seq.)] the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). Any sum collected as a fine or penalty pursuant to this section shall be applied toward enforcement and administration costs of the Division of Workplace Standards in the Department of Labor.

(cf: P.L.1991, c.205, s.5)

 

     7.  Section 24 of P.L.1966, c.113 (C.34:11-56a23) is amended to read as follows:

     24.  As an alternative to any other sanctions or in addition thereto, herein or otherwise provided by law for violation of this act or of any rule or regulation duly issued hereunder, the Commissioner of Labor is authorized to supervise the payment of [amounts] the amount of wages, overtime wages or paid time off due to employees under this act, and the employer may be required to make these payments to the commissioner to be held in a special account in trust for the employee, and paid on order of the commissioner directly to the employee or employees affected.  The employer shall also pay the commissioner an administrative fee equal to not less than [10%] 20% or more than [25%] 50% of any payment made to the commissioner pursuant to this section.  The amount of the administrative fee shall be specified in a schedule of fees to be promulgated by rule or regulation of the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The fee shall be applied toward enforcement and administration costs of the Division of Workplace Standards in the Department of Labor.

(cf: P.L.1991, c.205, s.21)

 

     8.  Section 26 of P.L.1966, c.113 (C.34:11-56a25) is amended to read as follows:

     26.  If any employee is paid by an employer less than the minimum fair wage, overtime wage or paid time off to which such employee is entitled under the provisions of this act or by virtue of a minimum fair wage order, such employee may recover in a civil action the full amount of such minimum wage, overtime wage or paid time off less any amount actually paid to him or her by the employer together with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between such employee and the employer to work for less than such minimum fair wage, overtime wage or paid time off shall be no defense to the action.  An employee shall be entitled to maintain such action for and on behalf of himself or other employees similarly situated, and such employee and employees  may designate an agent or representative to maintain such action for and on behalf of all employees similarly situated.  At the request of any employee paid less than the minimum wage, overtime wage or paid time off to which such employee was entitled under the provisions of this act or under an order, the commissioner may take an assignment of the [wage] claim in trust for the assigning employee and may bring any legal action necessary to collect the claim, and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court.

(cf: P.L.1966, c.113, s.26)

 

     9.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill amends and supplements the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a1 et seq.) to require that employers provide time off at full pay for employees to use during absences from the employment for sick leave, family care leave, bereavement leave, vacation or personal holiday leave.

     The bill provides that every full-time employee shall accrue not less than 48 hours of paid time off for each six months of work, and every part-time employee accrue a reduced number of hours of paid time off, prorated according to the amount of work of the employee during the six-month period.

     The employee may use the paid time off at any time during the one-year period following the six-month accrual period, subject to the following requirements and conditions:

     1.  If the paid time off is used for sick leave or family care leave and the need for the leave is foreseeable, the employer may require 14 days advanced notice;

     2.  If the paid time off is for sick leave or family care leave and continues longer than three consecutive days, the employer may require documentation of the illness from qualified medical personnel;

     3.  If the paid time off is for vacation or personal holiday leave, the employer may require 30 days advanced notice;

     4.  If the paid time off is for bereavement leave, the employer may require documentation regarding the bereavement; and

     5.  An employer may require the leave to be taken in periods not less than one half of a workday.

     For any amount of paid time off in excess of the minimum amount required by the bill, but only for that amount, an employer may designate how much of the time, if any, is specifically designated for use as each particular kind of leave.

     The bill does not extend the maximum period of leave to which an employee is entitled under the State "Family Leave Act," the federal "Family and Medical Leave Act of 1993," or both combined.  The bill does not prevent an employer from entering a collective bargaining agreement providing employees with greater paid time off rights than the bill.

     Finally, the bill increases certain penalties now provided for violations of the State wage and hour law and extends those penalties and all other enforcement provisions of that law to cover violations of the provisions of the bill.

     Paid time off is an essential need for all employees to be effective, responsible family members and efficient, undistracted, productive workers.  This bill is therefore necessary because, currently, more than half of all workers have no paid sick leave and more than a third of all workers have no sick leave or vacation leave.  Moreover, the low income workers who are most in need of paid time off for family and medical responsibilities are the least likely to receive it.