On October 29, 2018, the New Jersey Paid Sick Leave Law goes into effect. In anticipation of this new law, on October 24, 2018, the New Jersey Department of Labor and Workforce Development (NJDOL) issued a list of frequently asked questions relating to the new paid sick leave law. This new guidance follows the NJDOL’s release of proposed paid sick leave regulations and the New Jersey Earned Sick Leave poster.
While much of the guidance provided restates information set forth in the proposed regulations or in the statute, the newly issued FAQs clarify some open questions including (Note, the below are taken verbatim from the FAQs):
II. EMPLOYEES COVERED/NOT COVERED BY THE LAW
5. Is an employee who works both within New Jersey and outside of New Jersey entitled to receive earned sick leave? Continue reading NEW GUIDANCE — New Jersey Publishes FAQs Regarding Paid Sick Leave Law
The California Department of Labor Standards Enforcement (“DLSE”) recently published additional FAQs relating to the California Paid Sick Leave law. These new FAQs address questions regarding:
- “Grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015);
- Employee rates of pay, and
- The impact of state law on employer attendance policies.
With respect to “grandfathered” plans, the FAQs explains how a “grandfathered” plan complies with the paid sick leave law. This occurs when the “grandfathered” plan meets all of the accrual requirements set forth in the paid sick leave law, plus the following two criteria:
- The existing policy or plan made an amount of paid leave available that could be used for at least as many paid sick days as required under the new law, and
- The paid leave could be used under the same conditions as specified in the new law, or that had conditions more favorable to employees, (i.e., that provided more sick days than created under the new law, or that had a more favorable accrual rate, etc.)
If all of these criteria are met, then the employer is allowed to continue to use that existing paid time off plan in order to satisfy the paid sick leave requirements of the new law.
Rates of Pay
With respect to employee rates of pay, the FAQs clarify that under a grandfathered plan, the paid sick leave law does not change how employers compensate employees for paid time off under that time when time off is take for purposes other than California paid sick leave.
With respect to attendance policies, the FAQs clarify that employers are prohibited from disciplining employees for using accrued paid sick leave. Specifically, for employers who have an attendance “points” policy, employers cannot assess “points” against an employee for an absence that is covered under California law (including the California paid sick leave law
In addition, the FAQs address what happens when an employee has exhausted his/her California paid sick leave. If an employee does not have any accrued or available paid sick leave, (e.g., if the employee has already used all of his or her accrued and available paid sick leave under the employer’s policy, including as consistent with Labor Code section 233), and if the employee has an unscheduled absence that would otherwise violate the employer’s attendance policy, the paid sick leave law does not prohibit the employer from giving the employee an “occurrence” for such absence, even if the employee was actually sick and/or could have used paid sick leave for the absence if he or she had any such leave accrued.
The paid sick leave law does not “protect” all time off taken by an employee for illness or related purposes; it “protects” only an employee’s accrued and available paid sick leave as specified in the statute.
Take home for employers
It is recommended that all California employers review the updated FAQs and verify that their policies and practices comply with the new guidance.
As previously covered in this blog, there are many changes to the wage and hour regulations governing the New York Fast Food and Hospitality Industry taking effect on December 31, 2015. In order to help employers comply with these new regulations, the New York Department of Labor has posted answers to Frequently Asked Questions related to the new Fast Food Wage Order and increased state minimum wage for hospitality workers.
Most importantly, these Frequently Asked Questions address and clarify some issues that were not addressed in the regulations – specifically the uniform allowance, spread of pay, and tip credits questions that were not addressed in the new Fast Food Wage Order.
With respect to these topics, the Frequently Asked Questions state the following:
Q: How much does an employer have to pay a Fast Food Employee who maintains his or her own uniform?
A: The amount owed for uniform maintenance depends on the number of hours an employee works each week under the Hospitality Wage Order. As of December 31, 2015, those amounts are:
~ $11.20 for over 30 hours worked per week
~ $8.85 for 20 to 30 hours worked per week
~ $5.35 for 20 hours or less worked per week
Q: Can a Fast Food Employer take a credit towards the Fast Food Minimum Wage for tips earned by a Fast Food Employee?
A: No tip credit is available under the Hospitality Wage Order for non-service employees such as Fast Food Employees.
Spread of Pay
Q: Are Fast Food Employees subject to the call-in and spread of hours pay requirements for the Hospitality Industry?
A: Yes. Call-in and spread of hours pay must be paid at the Fast Food Minimum Wage rate.
It is recommended that all New York employers in the Fast Food and Hospitality Industries review these Frequently Asked Questions to ensure that their wage and hour practices are compliant with the new regulations.