As an employment lawyer, I anxiously awaited the proposed regulations for the New Jersey sick leave law as the law left some unanswered questions regarding carryover and other issues. The proposed regulations have been out for a few weeks now and I have had time to thoroughly digest them.
Unfortunately for employers, the proposed regulations do not answer some of the questions my clients had regarding the law and create confusion in other areas. Some of the more incomprehensible sections of the regulations occur in the section dealing with calculating sick leave pay. Employers with tipped, commissioned or piecework employees should pay special attention to these provisions.
There are many problems with this section, but one of the key ones is how an employer calculates a rate of pay for employees with two or more jobs for the employer, has a fluctuating rate of pay, is paid on piecework, or is a tipped employee. The proposed regulations at 12:69-3.6 provide that in these cases an employer must look at wages earned in the last seven (7) workdays where leave was not taken and take the earnings divided by the hours worked to get an hourly wage.
The problem with this is that few employees have a seven-day workweek. Instead, many employees have a five-day workweek. For those employees, an employer would have to go back one workweek plus two more work days in a previous week, which is likely not representative of the employee’s regular work schedule. It also creates an administrative nightmare as the employer could not simply look at the previous workweek to see what was earned.
It would make more sense to use the last week worked or a two-week period which would be more representative of an employee’s schedule.
This is but one issue in the proposed regulations. I have been working with several of my partners to help business groups prepare comments to the proposed regulations and this is one issue we intend to raise.
If you have other issues or questions about the proposed regulations, we would love to hear from you to see if they could be incorporated into our comments.
Employers can also provide comments directly to the Division of Labor by submitting written comments by December 14, 2018 to:
David Fish, Executive Director
Office of Legal and Regulatory Services
NJ Department of Labor and Workforce Development
PO Box 110
13th Floor
Trenton, New Jersey 08625-0110
E-mail: David.Fish@dol.nj.gov
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