—Background—
On July 17, 2013, New Jersey joined over a dozen states in requiring certain employers to provide leave for victims of domestic violence or sexual assault. The “New Jersey Security and Financial Empowerment Act,” (P.L. 2013, c. 82) took effect on October 1, 2013. This document sets forth information for employers on complying with the Act.
—New Jersey Security and Financial Empowerment Act—
The New Jersey Security and Financial Empowerment Act “NJ SAFE Act” is a job protection statute that provides 20 days of protected unpaid leave for an employee who is the victim of domestic violence or sexual assault, or, whose child, parent, spouse, civil union partner, or domestic partner was the victim.
Which employers are covered under the NJ SAFE Act?
The NJ SAFE Act applies to public and private employers who employ 25 or more workers over 20 weeks in the preceding 12 months.
Which employees are eligible for protected leave under the NJ SAFE Act?
To be eligible for leave under the NJ SAFE Act, an employee must be employed in New Jersey by a covered employer, as explained above. The employee also must have been employed at least 12 months for the employer, and must have worked 1,000 base hours in the preceding 12 months. Under the law, each incident of domestic or sexual violence offense constitutes a separate offense for which an employee is entitled to unpaid protected leave, provided that the employee has not exhausted the allotted 20 days for the year. Prior to taking the leave, an employee must, if the leave is foreseeable, provide the employer with written notice as far in advance as is reasonable and practical under the circumstances.
For what reasons can an employee be granted leave?
An employee may be eligible for leave as a result of an incident of domestic or sexual violence that he or she directly experienced, or for an incident experienced by a family member (defined as parent, child, spouse, domestic partner or civil-union partner). The leave can be taken consecutively or intermittently (only in full day increments) for any of the following reasons:
- To get medical attention or recover from physical or psychological injuries caused by domestic or sexual violence, or, to assist a family member with their care or recovery;
- To get services from a victim services organization, or to assist a family member in obtaining services;
- To get psychological or other counseling or to help a family member get that assistance;
- To participate in safety planning, relocating, or taking other steps to increase safety or economic security or to assist an affected family member in those efforts;
- To get legal assistance or help a family member get legal assistance, including preparing for court proceedings; or,
- To participate in legal proceedings related to the domestic or sexual violence, or to assist a family member in participating.
Can an employer require documentation proving that the leave is necessary?
Yes. The law permits employers to require documentation to support the need for leave for an employee’s own situation or that of a family member (defined as parent, child, spouse, domestic partner or civil-union partner). Under the law, an employee can produce any of the following “to be regarded as providing sufficient documentation”:
- a copy of a restraining order or other documentation issued by a court;
- a letter or other written documentation from the county or municipal prosecutor;
- documentation of the conviction of a person for domestic or sexual violence;
- medical documentation of the domestic or sexual violence;
- documentation from a certified domestic violence specialist or the director of a designated domestic violence agency or Rape Crisis Center; or
- other documentation or certification of the domestic or sexual violence provided by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or the employee’s family member.
The law requires that any information obtained by an employer be held “in the strictest confidentiality” unless the disclosure is voluntarily authorized in writing by the employee or is required by law.
What are an employer’s responsibilities under the law?
All employers covered under the NJ SAFE Act must conspicuously post a notice in their workplace advising their employees of the provisions of the law. The notice can be found at: http://nj.gov/labor/forms_pdfs/lwdhome/AD-289_9-13.pdf
Does the NJ SAFE Act protect an employee’s job?
Yes. Like the New Jersey Family Leave Act (NJFLA) and the Family and Medical Leave Act (FMLA), the NJ SAFE Act is a job protection statute and mandates that an employer maintain an employee’s position. Specifically, under the law employers are prohibited from discharging, harassing, or retaliating against (or threatening) an employee who takes or requests leave to which the employee is entitled. Similarly, an employee cannot be discharged, harassed, or discriminated against because they refuse to authorize the release of confidential information related to the domestic or sexual violence. Additionally, an employer can only rescind or reduce any employment benefit if doing so is based on changes that would have occurred anyway if an employee had not taken leave.
Does the NJ SAFE Act run concurrent with other leave laws and an employer’s paid-time-off policies?
Yes. An employer may require an employee to use any of their accrued paid vacation leave, personal leave, or medical or sick leave during any part of the 20-day period of protected leave. If an employee requests leave for a reason covered by the NJ SAFE Act and the New Jersey Family Leave Act (NJFLA) or the federal Family and Medical Leave Act (FMLA) the leave will count simultaneously against the employee’s entitlement under each respective law.
Employers should also be aware that under New Jersey’s Paid Sick Leave Law, P.L.2018, c.10, an employee can use paid sick leave to deal with domestic violence or sexual assault experienced by an employee, or experienced by one of their family members.
What are the penalties for violating the provisions of the NJ SAFE Act?
An employer who violates the provisions of the NJ SAFE Act is subject to fines between $1,000 and $2,000 for a first violation and up to $5,000 for each subsequent offense. In addition, an aggrieved employee may institute a civil suit where punitive damages and attorney’s fees may be awarded.
—For More Information—
If you need additional information, please contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or member411@njbia.org.
This information should not be construed as constituting specific legal advice. It is intended to provide general information about this subject and general compliance strategies. For specific legal advice, NJBIA strongly recommends members consult with their attorney.
