Pub. 17 2018-2019 Issue 2

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S I S S U E N O . 3 , 2 0 1 8 32 new jersey auto retailer Notice Employers are entitled to 7 days advance notice of “foreseeable” absences and can restrict employee’s use of “foreseeable” paid sick leave on certain dates. Where the need is unforeseeable, an employer may only require notice “as soon as practicable,” if the employer has notified the employee of this requirement. In addi- tion, employers are only permitted to ask the employee for documentation to substantiate the sick leave if the employee is absent for 3 or more consecutive days. Compliance Dealers are now required to maintain records docu- menting the hours worked and earned sick leave used by employees. Records must be maintained for 5 years and made available for inspection by the NJDOL. If an employee claims a violation of the Act and the employ- er failed to maintain adequate records, there will be a presumption that the employer failed to provide paid sick leave. Dealers must also post a notification and distribute a written notification alerting employees of their rights within 30 days of the notice being issued by the NJDOL and provide the notification to all new employees at the time of hiring. Anti-Retaliation Dealers are prohibited from retaliating or discriminat- ing against employees under the Act. The Act broad- ly defines retaliation to include not only retaliatory personnel action like suspension, demotion, or refusal to promote, but also includes threatening to report the immigrant status of an employee or family member of the employee. Dealers are also prohibited from retali- ating or discriminating against an employee who files a complaint with the commissioner or a court alleging the employer’s violation of the Act or informs any oth- er person of their rights under the Act. There is also a rebuttable presumption of unlawful retaliatory action whenever an adverse action is taken against an employee within 90 days of when that em- ployee opposes any violation of the Act, informs any person about the employer’s alleged violation of the Act, files a complaint alleging a violation of the Act, or cooperates in an investigation into an alleged violation of the Act. Penalties Any failure of an employer to make available or pay earned sick leave as required by the new law, or any other violation of the law, shall be regarded as a fail- ure to meet the wage payment requirements of the New Jersey Wage and Hour Law. Dealers will also be subject to the penalties and remedies contained in the New Jersey Wage and Hour Law, including fines and possible imprisonment, reinstatement of a discharged employee to correct any discriminatory action and payment of all lost wages in full. Bottom Line for Dealers on Paid Sick Leave While the new law is silent how compensation for un- used sick leave should be calculated for commissioned sales employees given the lack of guidance from the NJDOL, it is reasonable to predict that calculating sick leave may be based on the minimum wage. Dealers, in consultation with legal counsel, must review and revise existing sick leave policies, practices and pro- cedures related to calculating an employee’s sick leave to ensure compliance with the Act. Human Resources and Benefits personnel should also be trained on the new paid sick leave law requirements and managers should also receive updated training to ensure that internal recordkeeping processes are sufficient to keep track of time taken under the new law. Dina Mastellone, Esq. is Chair of the Human Resource Training & Audit Programs Group and a Partner in the Employment Law & Litigation Practice Group at Genova Burns. She can be reached at 732.842.2732 or dmastel - lone@genovaburns.com. Employers are entitled to 7 days advance notice of “foreseeable” absences and can restrict employee’s use of “foreseeable” paid sick leave on certain dates. MURPHY’S LAW  continued from page 31