The New Jersey Security and Financial Empowerment Act

August 2013Alerts Labor & Employment Alert

The New Jersey Security and Financial Empowerment Act (SAFE Act) becomes effective October 1, 2013, and applies to all public and private employers with 25 or more employees. The SAFE Act provides an employee with up to 20 days of unpaid leave in a 12-month period when the employee or his or her child, parent, spouse, domestic or civil union partner has been the victim of a domestic violence incident or a sexually violent offense so long as the employee has been employed by the employer for at least 12 months and has worked 1,000 hours during the 12-month period immediately preceding the leave.

Leave may be taken under the SAFE Act to:

  1. Seek medical attention or recover from physical or psychological injuries resulting from a domestic violence or a sexually violent offense.
  2. Obtain services from a victim services organization.
  3. Obtain psychological counseling.
  4. Participate in safety planning, relocating or other actions to increase the safety of the employee or to ensure economic security.
  5. Seek legal assistance to ensure health and safety or to participate in civil or criminal proceedings related to or derived from a domestic violence or a sexually violent offense.
  6. Attend, participate in or prepare for a civil or criminal court proceeding.

Employers may require the employee to substantiate the domestic violence or sexually violent offense that forms the basis for the requested leave. Documentation may include a restraining order, a letter from the prosecutor’s office, documentation regarding the conviction of the abuser, medical documentation, a certification from a domestic violence specialist or rape crisis center, or documentation from a religious or social services professional who has assisted the employee or the employee’s family member. Employers must maintain this documentation with the “strictest confidentiality.”

Employees may take leave under the SAFE Act for each incident of domestic violence or sexually violent offense, so long as the employee has not exhausted the maximum permissible leave time of 20 days within the 12-month period. Leave may be taken in blocks of time or intermittently in minimum intervals of one day. If the necessity for the leave is foreseeable, such as a scheduled court appearance or counseling appointment, the employee must provide advanced written notice to the employer as soon as is reasonable and practical before the anticipated leave under the SAFE Act.

If the employee’s request for leave under the SAFE Act is also covered by the New Jersey Family Leave Act or the federal Family and Medical Leave Act, the leave will be counted concurrently with the employee’s entitlement under each law. Employers may also require, or employees may elect, to substitute accrued paid time off for any part of the 20 day leave provided for under the Act.

The SAFE Act prohibits discrimination, harassment and retaliation against covered employees and provides for a private cause of action if their rights have been violated. Covered employees may file suit within one year of the alleged violation and may seek damages including: reinstatement, lost wages and benefits, an injunction to halt continued violations and attorneys’ fees and costs. The court may also assess fines between $1,000 and $2,000 for the first violation and up to $5,000 for subsequent violations.

WHAT YOU NEED TO DO:

  1. Place a notice of employees’ rights and obligations under the SAFE Act in a conspicuous location and use “other appropriate means to keep its employees so informed.” The Commissioner of Labor and Workforce Development has not yet provided suggested language for the required notice or the means by which employers are required to “keep employees informed,” but is expected to do so prior to October 1, 2013. Stay tuned for further updates.
  2. Consider revising your leave policies to incorporate the requirements set forth in the SAFE Act.
  3. Ensure that all human resource professionals in your company are aware of the SAFE Act and that supervisory employees are aware of this potential leave for company employees.
  4. Establish a policy and procedure to ensure that any documentation submitted to support the basis for the leave is kept strictly confidential and access is restricted to a senior human resource professional in your company.