• New Jersey Provides Unpaid Leave to Victims of Domestic Violence
  • July 31, 2013 | Authors: Lisa M. Harris; Kevin J. Smith
  • Law Firm: Sheppard, Mullin, Richter & Hampton LLP - New York Office
  • On October 1, 2013, the New Jersey Security and Financial Empowerment Act (the “ Safe Act”) becomes effective. New Jersey joins a handful of states providing employees who are victims of domestic violence and sexual assault with certain rights, including 20 days of unpaid leave to deal with matters related to an incident of domestic violence or sexual assault.

    Specifically, the Safe Act provides a New Jersey employee who is the victim of domestic violence or sexual assault or whose child, parent, spouse, domestic partner, or civil union partner was the victim of domestic violence or sexual assault with up to 20 days of unpaid leave during the 12-month period following the incident, to:

    • Seek medical attention for, or recover from, physical or psychological injuries;
    • Obtain services from a victim services organization;
    • Obtain psychological or other counseling;
    • Participate in safety planning, temporarily or permanently relocate, or undertake other actions to increase safety;
    • Seek legal assistance or remedies; or
    • Attend, participate in, or prepare for court proceedings.

    Each separate incident entitles an employee to unpaid leave, provided that the employee has not already exhausted the 20 days of leave within the applicable 12-month period. Unpaid leave may be taken intermittently.

    Employees may elect, or employers may require employees to use any accrued vacation, personal or sick leave while on Safe Act leave. Likewise, if the requested leave is also covered by the New Jersey Family Leave Act or the Federal Family and Medical Leave Act, the requested leave will count against all three leave entitlements.

    Employees are required to provide notice, if leave is foreseeable, and may be required to provide documentation substantiating the need for leave. If an employer requires such documentation, one or more of the following is sufficient:

    • a restraining order or other documentation of relief issued by a court;
    • a letter or other written documentation from the county or municipal prosecutor documenting the domestic violence or sexually violent offenses;
    • documentation of a domestic violence or sexually violent offense conviction;
    • medical documentation of the domestic violence or sexually violent incidents;
    • certification from a certified Domestic Violence Specialist, a director of a designated domestic violence agency, or Rape Crisis Center; or
    • other documentation provided by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or employee’s child, parent, spouse, domestic partner, or civil union partner.

    Any information received in connection with the leave request must be kept strictly confidential unless disclosure is authorized in writing by the employee or required by federal or state law or regulation.

    Employers must conspicuously display employees’ rights under the Safe Act and may not discriminate or retaliate against an employee who takes or requests Safe Act leave. Employees who believe they have been discriminated or retaliated against or unlawfully denied leave may file a civil action against the employer. Available remedies include:

    • Reinstatement;
    • compensation for lost wages and benefits;
    • an injunction to restrain continued violations;
    • reasonable attorneys’ fees and costs;
    • a civil fine of $1,000 to $2,000 for a first-time violation; and
    • a fine of up to $5,000 for any subsequent violations.

    The Safe Act applies to public and private employers with 25 or more employees. Employees requesting leave must be employed for at least 12 months and must have worked at least 1,000 hours in the 12-month period preceding the leave.

    With a little over two months until the Safe Act becomes effective, New Jersey employers should familiarize themselves with the details of the Safe Act and update their policies accordingly.