On Target 2013-2014 Dec./Jan. / Legal Corner

The New Jersey Safe Act

The New Jersey Security and Financial Empowerment Act, or the “The New Jersey Safe Act” took effect on October 1, 2013. New Jersey is one of more than dozen states to pass such a law. The overriding purpose of the law is to provide victims of domestic violence or sexual assault with the ability to take unpaid leave in order to have the time necessary to tend to their needs, or the needs of their family members, as defined by the act. 1 The range of things that an employee may tend to is rather extensive: (1) seeking medical attention or recovering from physical or psychological injuries caused by the abuse or violence; (2) obtaining services from a victim services organization either for themselves or family members; (3) obtaining psychological or other counseling for the employee or the employee’s family; (4) participating in safety planning, which might include temporary or permanent relocation to protect the employee or employee’s family from future domestic or sexual violence, or to ensure economic security; (5) seeking legal assistance or remedies to help ensure the health, safety of the employee or the employee’s family, including preparing for or participating in civil or criminal proceedings related to the domestic or sexual violence; and (6) attending legal or civil proceedings related to the incident of domestic or sexual violence.

The act defines an eligible employees as “a person who is employed for at least 12 months by an employer, with respect to whom benefits are sought under this act, for not less then 1,000 base hours during the immediately preceding 12-month period . . ..” In addition, by its terms, it applies to almost all employers that employ more than 25 people. Specifically, an employer is defined as “a person or corporation, partnership, individual proprietorship, joint venture, firm, or company, or other similar legal entity which engages the services of an employee and employs 25 or more employees for each working day during each of 20 or more calendar workweeks in the then current or immediately preceding calendar year. ‘Employer’ includes the State, any political subdivision thereof, and all public offices, agencies, boards or bodies.” 2

The definition of employer certainly encompasses school districts. Eligible employees who are a victim of domestic violence or a sexually violent offense are entitled to take unpaid leave not to exceed 20 days in one 12-month period, and the days are to be used in the 12-month period next following the incident. Much like the Family Medical Leave Act, 3 the unpaid leave may be taken intermittently in intervals of not less then one day as needed. Eligible employees may elect to utilize paid leave which could be vacation, sick or personal; an employer can also require an employee to utilize these kinds of paid leave. In the event that the employee is taking such paid leave, the leave shall run concurrently with the unpaid leave if the employee is being paid. In addition, if the employee requests leave under both The New Jersey Safe Act and the Family Medical Leave Act, the leave shall count simultaneously for both. If the employer is going to require an employee to take paid leave, it is best to incorporate this into the applicable policy.

If the employee is able, because the leave is foreseeable, the employee must provide the employer with written notice of the leave as far in advance as is reasonable and practical under the circumstances. The employer may request documentation from the employee that demonstrates that s/he, or a family member, was the victim of domestic or sexual violence. The following kinds of documentation shall be deemed sufficient: (1) a domestic violence restraining order or other documentation of equitable relief issued by a court; (2) a letter or other documentation from a county or municipal prosecutor that evidences the domestic or sexual violence; (3) written confirmation of the conviction of the perpetrator of the act of domestic or sexual violence; (4) medical documentation of the domestic or sexual violent act; (5) certification from a certified domestic violence specialist or the director of a designated domestic violence agency or rape crisis center; 4 or (6) other documentation of the domestic or sexual violence provided by a social worker, clergy member, shelter worker, or other professional who has been assigned to assist the employee or family member in dealing with the domestic or sexual violence.

Employers must conspicuously display notice of its employees’ rights under this act. An employer is not permitted, nor required to reduce an employees’ benefits either provided by policy or via a collective negotiations agreement due to the employee’s exercise of his/her rights under the act. In addition, the act is not to be construed in a manner so as to preclude the negotiation or provisions of leave or benefit programs which provide benefits in excess of those required by this act. In addition, the employer may not rescind or reduce any employment benefit accrued prior to the date of the leave. Employers are prohibited from discharging, harassing, retaliating or otherwise discriminating against an employee with regard to his/her compensation, and/or other terms and conditions of employment for exercising his/her rights under the this act.

If an employer violates the act, an employee or former employee may institute a civil action in the Superior Court for relief. Common tort remedies shall also be available. Fines can range up to $1,000 to $2,000 for a first violation, and up to $5,000 for subsequent violations. Employees may also receive injunctions to prevent continued violations and may seek reinstatement to the same position, or its equivalent, as a remedy. Employers can also be required to pay lost compensation and benefits. There is a one-year limitation to pursing these remedies. Employees may obtain reimbursement of reasonable attorney’s fees. Any information provided by an employee to support their request for leave must be kept confidential.

The act is rather comprehensive. Boards will need to examine and revise existing policies to properly implement the provisions of this law as soon as practicable. If school administrators are confronted with any issues concerning the applicability of this law, they should consult district counsel.

¹ P.L. 2013, c. 82 (July 17, 2013).

² Id. (Emphasis added.)
³ N.J.S.A. 34:11B-1, et seq.

⁴ Since the employee is entitled to the leave, if the employee him- or herself is the victim or the victim is the employee’s child, parent, spouse, domestic partner or civil union partner, the documentation provided will need to demonstrate the purpose of the leave.