New Jersey has recently enacted the Security and Financial Empowerment Act (“SAFE Act“). This law requires many public and private employers to allow employees to take an unpaid leave of absence up to 20 days in any 12-month period if that employee or someone in the employee’s immediate family (child, parent, or spouse) is a victim of domestic violence or a sexually violent offense.
The leave must be taken for the purposes of seeking medical attention or recovering from physical or psychological injuries, obtaining services from a victim services organization, obtaining counseling, participating in safety planning or relocation, or seeking legal assistance or other legal remedies as a result of sexual or domestic violence.
Each incident of domestic violence or a sexually violent offense is considered separate, each providing for up to 20 days of leave. Leave may be taken intermittently, as opposed to all together, but must be taken in full days. Therefore, if the person taking leave only needs to be out of work from 2-5p.m. on Monday and Thursday, she may take leave on both Monday and Thursday, but one full day of the leave will be credited, even if she is only gone one half day (she must, of course, be paid for the time she worked).
Although the employer is only required to grant unpaid leave, an employee may elect or an employer may require that the employee use paid vacation, sick, or personal time for all or part of the leave.
An employee taking leave to care for an immediate family member under the New Jersey SAFE Act may also be eligible for leave under New Jersey’s Family Leave Act (“NJFLA“) or the federal Family and Medical Leave Act (“FMLA“). If the employee is the one who personally suffered injuries covered by the New Jersey SAFE Act, she is not also eligible under NJFLA, but she may be eligible under FMLA. The SAFE Act permits an employer to count the leave under these Acts as occurring simultaneously.
For the New Jersey SAFE Act to apply, the employee must have worked for the employer at least one thousand hours in the last twelve months – which is similar to the requirements under New Jersey’s Family Leave Act which provides job security for employees who need to take leave to care for an ill family member. Also, the SAFE Act only applies to employers who employ at least 25 employees.
The SAFE Act incorporates the definition of “domestic violence” from New Jersey’s Criminal Code. This definition includes crimes such as homicide, assault, terroristic threats, kidnapping, sexual assault, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking which have been perpetrated by the victim’s spouse, former spouse, or other person who is a current or former member of the victim’s household.
SAFE incorporates the definition of “sexual violent offense” from the New Jersey Sexually Violent Predator Act which includes crimes such as aggravated sexual assault, sexual assault, kidnapping in some circumstances, criminal sexual contact, felony murder when there is an underlying sexual assault, or an attempt to commit any of these offenses.
An employer cannot discharge, discriminate, retaliate against, or harass an employee because the employee took leave, or asked to take leave under SAFE. If an employee’s rights under the SAFE Act are violated by her employer, she may bring an action in New Jersey’s Superior Court. If an employee is successful in her lawsuit, the court may award her compensation for any lost wages, benefits, or other renumeration, payment of reasonable costs and attorneys fees, an additional fine of $1,000-$2,000 for a first violation and up to $5,000 for each subsequent violation, to be paid to the employee, and, possibly, reinstatement of her employment position.
McLaughlin & Nardi’s employment attorneys are experienced with helping employers ensure that they are complying with laws. They are also experienced at counseling employees regarding their rights and representing those employees who have been denied their rights by employers. To contact us to learn more about what we can do to help, please visit our website, or contact one of our New Jersey lawyers by e-mail or telephone at (973) 890-0004.