Judge Rules Trenton Paid Sick Leave Ordinance Applies Only to Companies Located in the Capitol City

Following a challenge initiated by the NJBIA and five other business groups, Counsel to the City of Trenton announced that the Trenton paid sick leave ordinance would only apply to businesses located in the city itself and would not apply to businesses outside its borders with employees who physically work at least 80 hours a year in the city.

In her April 16 ruling, Judge Mary Jacobson provided that the city would be held to the representation of Counsel that the ordinance only applies to workers within its boundaries.

While Judge Jacobson ultimately dismissed a complaint to overturn the entire ordinance, the city’s concession is good news and brings clarity to the thousands of employers who do business in the city.

The ordinance took effect on March 4, 2015 and excludes construction unions covered by collective bargaining, and other employees covered by collective bargaining agreements which waive paid sick leave requirements.

The time could be accrued by both part-time and full-time workers at a rate of one hour of sick time for every 30 hours worked. Employers with 10 or more employees would have to provide up to five paid days each year. Businesses with less would have to provide up to three paid days each year — except for workers in child care, food service, and home healthcare who would be automatically entitled to five days.

All employees eligible for sick days would be permitted to carry over a maximum of 40 hours per year, regardless of their employer’s size. They would not, however, be able to use more than 40 hours in one year. Additionally, they would not be entitled to carry over any time if they were paid for the hours they did not use. Also, employees would not be eligible to use their days until working at least 90 days. While employers would be permitted to ask employees to confirm the use of the sick time in writing, they would not be able to require advanced notice more than seven days prior to an absence. Documentation could only be requested where an employee had used time on three consecutive occasions.

The time provided by employers could be used:

• For an employee’s mental or physical illness, injury, health condition, or for the diagnosis, preventative care, or treatment of such conditions.
• To care for a family member (defined as child, stepchild, foster child, child of partner, parent, step-parent, parent-in-law, spouse, grandparent, grandparent’s spouse/partner, grandchild) with a physical or mental illness, injury, health condition, or for the diagnosis, preventative care, or treatment, of a family member with such conditions.
• For closure of the employee’s place of business by order of a public health official, or to care for a child whose school has been closed by order of a public health official.
• To care for a family member when it has been determined by authorities that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, regardless of whether the family member has actually contracted the disease.

Employers would have to provide their employees with a written notice explaining their rights at the beginning of employment, or “as soon as practicable” if the employees were already employed when the ordinance takes effect. Employers would also have to conspicuously display a poster explaining the ordinance in English and any other language that is the first language of at least 10 percent of the workforce.

Records documenting employee hours and the time taken by employees would have to be kept (for an undefined period of time) and made available upon the city’s request. Failure to provide the records would create a rebuttable presumption that the ordinance has not been followed.

Although the ordinance states that it does not apply to Trenton employers with time-off policies that provide the minimum number of days required, it also says that the time must be awarded for the same purposes and conditions as the ordinance provides. As a result, it is likely that existing employer policies would need to be revised. The ordinance also provides language to prohibit retaliation against employees exercising their rights. This could result in all Trenton employers – even those with policies – facing additional liability since the ordinance creates an explicit right to sue if an employee believes their rights have been violated. Employers could also face monetary fines and other penalties.

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