Governor Phil Murphy campaigned on a promise to sign sick leave legislation. He mentioned the issue again in his budget address, urging the legislature to get a bill to his desk. And an Assembly version sponsored by Assemblywoman Lampitt was heard and voted out of the Assembly Labor Committee this week and is moving through the legislative process.
NJCJI has been engaged in the details of sick leave since early versions were introduced last legislative session. We have focused not on the mandate itself, but on the manner in which it is imposed and the enforcement mechanisms involved in ensuring employer compliance. By that measure, the most recent version of sick leave represents a significant improvement, though two critical flaws in the enforcement mechanism would continue to unduly infringe on workplace flexibility and expose employers to significant and unwarranted liability.
Steps in the Right Direction…
It is striking that although the vast majority of New Jersey employers already offer more generous paid sick leave to their employees than would be mandated under the bill, many such employers have nevertheless opposed this legislation since first introduced last session. Under earlier versions, the broad statutory entitlement to paid sick leave, compounded by incentivized-litigation enforcement mechanisms, would deprive those employers of the flexibility to administer their leave policies in a way that deters abuse and is consistent with the needs of their businesses.
The Committee Substitute of A1827, sponsored by Assemblywoman Lampitt, is a significant improvement. The bill would ensure greater clarity and predictability, by imposing an effective blanket preemption on all local ordinances to ensure one uniform statewide standard, with one standard of 40 hours of leave for all employers. It would also grant employers more flexibility in deterring abuse of sick leave policies. Employers could require pre-clearance for foreseeable sick leave on “blackout” dates, as well as documentation to confirm non-foreseeable sick leave on those dates.
…But More Work to be Done
Some flaws in the enforcement mechanism would still expose employers to a risk of unwarranted liability. But that risk, and the overall workability of the legislation, could be significantly improved with a few modest amendments.
First, employer flexibility in making adjustments to schedules and responsibilities must be protected. An employee’s right to use sick leave must be balanced with an employer’s need to make the necessary adjustments to ensure that the work is completed on time. But the existing definition of prohibited “retaliatory personnel action” includes not just constructive discharge, demotion, and the like – it would also bar “unfavorable reassignment.”
“Unfavorable” could include a less lucrative shift with worse tips, for service-industry jobs, or working on a lower-profile product for a pending product launch in the consumer-product industry. For employees who travel to client offices, it could mean the difference between working a stint in San Diego or Bismarck. For a business in trade work, it might mean the difference between a prevailing-wage project and a project that pays market wages. But employers need the freedom to make all of these adjustments – the flexibility to move employees around to ensure necessary work is completed in timely fashion is essential to a functional work place. And employers should not have to risk being dragged into court to defend such adjustments.
Our second concern is with the presumption for retaliation. The bill would create 90-day window during which any adverse employment action is presumed to be retaliatory, with the burden on the employer to prove that the adverse action was unrelated to the employees’ sick leave-related activity. But in addition to documented and verifiable actions like filing complaints with the Department of Labor or with the courts, the presumption would also triggered by merely speaking to another employee about their rights under the law.
The burden-shift to employers to essentially prove their innocence is a powerful tool that should not be granted lightly. It should not be so easily manufactured by an employee, and so prone to abuse, as a mere conversation with colleagues about sick leave. And if the presumption has been triggered, it is only fair that the employer be on notice of the risk they run in taking any action that might be considered “adverse.”
The critical challenge of a paid sick leave mandate is balance.
The shift from voluntary policies to statutory entitlement will necessarily entail some lost flexibility, even for employers who already offer sick leave. But the sponsors’ core objectives can be achieved while preserving significant employer discretion. The remaining challenge to a workable bill is ensuring that enforcement mechanisms in the bill accommodate the practical challenges of running a business, and don’t penalize employers for taking the necessary steps to ensure that work gets done.