Proposed Sick Leave Regulations in New Jersey Create More Questions than Answers

As an employment lawyer, I anxiously awaited the
proposed regulations for the New Jersey sick leave law
as the
law left some unanswered questions regarding carryover and other
issues.  The proposed regulations have been out for a few weeks
now and I have had time to thoroughly digest them

Unfortunately for employers, the proposed regulations do not
answer some of the questions my clients had regarding the law and
create confusion in other areas.  Some of the more
incomprehensible sections of the regulations occur in the section
dealing with calculating sick leave pay.  Employers with tipped,
commissioned or piecework employees should pay special attention to
these provisions.

There are many problems with this section, but one of the key
ones is how an employer calculates a rate of pay for employees with
two or more jobs for the employer, has a fluctuating rate of pay,
is paid on piecework, or is a tipped employee.  The proposed
regulations at 12:69-3.6 provide that in these cases an employer
must look at wages earned in the last seven
(7) workdays where leave was not taken and take
the earnings divided by the hours worked to get an hourly wage.

The problem with this is that few employees have a seven-day
workweek. Instead, many employees have a five-day workweek.  For
those employees, an employer would have to go back one workweek
plus two more work days in a previous week, which is likely not
representative of the employee’s regular work schedule. It also
creates an administrative nightmare as the employer could not
simply look at the previous workweek to see what was earned.

It would make more sense to use the last week worked or a
two-week period which would be more representative of an
employee’s schedule.

This is but one issue in the proposed regulations.  I have been
working with several of my partners to help business groups prepare
comments to the proposed regulations and this is one issue we
intend to raise.

If you have other issues or questions about the proposed
regulations, we would love to hear from you to see if they could be
incorporated into our comments.

Employers can also provide comments directly to the Division of
Labor by submitting written comments by December 14,

David Fish, Executive Director
Office of Legal and Regulatory Services
NJ Department of Labor and Workforce Development
PO Box 110
13th Floor
Trenton, New Jersey 08625-0110

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s