The History behind the Trenton Paid Sick Leave Law
In November, 2014 Trenton and Montclair passed identical paid sick leave laws, becoming the fifth and seventh and eighth cities in New Jersey to implement a sick leave law for employees. The Ordinance is officially called “An Ordinance To Add a New Chapter To The Ordinances Of Trenton To Promote The Overall Health And Safety Of The Residents And Workers Of The City Of Trenton By Reducing The Spread Of Communicable Disease And Contagion By Requiring A Policy Of Paid Sick Leave For Workers In Trenton.” The Ordinance is referred to as Sick Leave for Private Employees or Paid Sick Leave. The ordinance specifically applies to private business. Trenton City exempted itself and all city employees from the new requirements.
In 2016, six cities passed sick leave ordinances in New Jersey. Passaic, East Orange, Paterson, and Irvington were the first in September. In November Trenton and Montclair voters passed a new sick leave ordinance. The new ordinance took effect on March 4, 2015. However, it was not without a quick fight. Trenton businesses filed a lawsuit against the city for its vague and ambiguous law. They also believed that the new ordinance goes contrary to New Jersey law. However, a New Jersey judge threw out the lawsuit and ruled that the city does have the right to pass the ordinance.
However, many aspects of the ordinance are vague and fail to answer basic questions addressed in ordinances and sick leave laws throughout the country. One such aspect is whether or not the ordinance applied to occasional-basis employees. Occasional-basis employees are employees whose employer does not reside in Trenton, but for whom the employee works in Trenton city limits occasionally through the year. The Trenton Paid Sick Leave ordinance states that it applies to “all employees” and defines employees of privately held businesses. There is no mention of employees whose employer is based outside of Trenton. According to a strict interpretation of the ordinance, occasional basis employees would be covered by the Trenton Ordinance. Even so, the city’s attorney Louis Rainone said that the ordinance is clear and doesn’t apply to businesses outside of Trenton. Despite, his statement, it is unclear whether or not the city would be able to find an outside company not complying with the law.
Trenton Sick Leave Overview
The ordinance provides paid sick leave to employees of private businesses. Employers who have 10 or more employees must provide up to 40 hours (5 days) of paid sick leave to their employees. On the other hand, small employers, those with 1-9 employees, must provide up to 24 hours (3 days) of paid sick leave to employees each year. One hour of sick leave is earned for every 30 hours worked. Certain small employers must still provide up to 40 hours of sick leave to employees. Those exceptions are found in three categories of workers. Those three exceptions are for child-care workers, home health care workers, and food service workers. All of those types of workers will accrue higher hours of paid sick leave. As mentioned above, the language of the Trenton Ordinance appears to include external businesses with employees who work occasionally in Trenton City Limits. Employees are defined as any private employee who works in Trenton for 80 hours or more a year. Taken literally, this means that out of state employers, as well as foreign employers, could be liable to the new law. 80 hours a year breaks down into an average of just 1 ½ hours a week.
Accrual of Sick Time
Employees earn paid sick leave at the rate of 1 hour for every 30 hours worked up to either 40 or 24 hours a year of paid leave. As mentioned, the exception to the small business 24 hours of sick leave accrual rule is for employees in child care, home health care, and food service. There are no exceptions for small or single person employers. That means that a family with a regular babysitter must provide paid sick of up to 40 hours for their baby sitter. It’s also important to note that employee count is the determining factor, even if the employees are part time or temporary employees. Employee count is not based on a Full Time Equivalent (FTE) calculation.
|Business or Employer Size||Hours of Sick Leave Available Each Year|
|10+ employees||40 hours of paid sick leave a year|
|<10 employees||40 hours of unpaid sick leave a year|
|*Industry exception, regardless of business size||Any Child-care, home health care, or food service worker can earn 1 hour for every 30 hours worked up to 40 hours a year.|
Calculating the Business Employee Size
Businesses whose employee count fluctuates can determine the size of the business by looking at the average number of employees on payroll in the previous year. This is a flat, and total number of employees. Employers cannot use FTE count. This means that 2 part time employees that work 15 hours a week, for a total of 30 hours, would still be counted as 2 employees under the ordinance. Each person counts as an employee, even if they aren’t a full time employee. Temporary, Part Time and Full time employees all count equally. As an example, an organization with 12 part time employees is considered to be a large business, even though the FTE may land at about 4.5 FTE’s. This is typical of the local sick leave laws found in New Jersey, but is vastly different to other sick leave laws throughout the United States. Employers based outside of Trenton need to be aware of this.
Paid Sick Leave Accrual and Carryover
Employers can use any consecutive 12 month period for their calendar year. Managers should inform employees if the accrual year is different than the standard calendar year of January through December.
For the purposes of accruing paid sick leave, exempt employees are assumed to work a 40 hour week. If the employee regularly works less than 40 hours a week, then sick leave will accrue based on their regular schedule, but overtime hours for exempt employees do not accrue additional sick leave hours. Exempt employees are defined according to the duties and salary tests defined in the Fair Labor Standards Act.
Unused sick leave can be carried over to the following year. Up to 40 hours of sick leave can be carried over. But, even if employees carry over unused sick leave, they are still restricted to using up to 40 hours of sick leave each year. The purpose of allowing sick leave to be carried over is so that employees can utilize sick leave needs at the beginning of the year, prior to accruing additional sick leave for that year. Businesses can choose to avoid rolling sick leave to the next year if they payout unused, accrued sick leave at the end of the year.
Covered Employees under the Paid Sick Leave Ordinance
The Trenton ordinance covers all private employees that work in city limits for 80 hours a year or more. It doesn’t specifically limit the definition of employees to registered businesses within city limits, which means that individual employers and families also likely fall under the new Paid Sick Leave Laws. In addition outside employers who have employees working within Trenton for 80 hours or more a year would also likely be covered under the ordinance. It is vital that employers, who have employees who operate on an occasional-basis in the township, are aware of the law and that they maintain accurate records of employee time spent inside the city. This includes temporary and seasonal employees, as well as full time and part time employees.
Employee Exceptions to Earned Sick Time
There are few exceptions to the Trenton Sick Leave Law. Trenton officials excluded the city and all employees from the sick leave law. Plus, all other government employees, including Federal, State and Local governments are also excluded. Educational employees are exempt and are defined as an employee of any school district or the board of education. Lastly, all construction union employees are also exempt. Construction Union employees are all industries of reconstruction, demolition, alteration, custom fabrication, or repair work. Additionally those employees must be enrolled or have graduated from a registered apprenticeship program.
Allowable Uses for Earned Sick Leave
The allowable uses for Trenton’s Paid Sick Leave follow previously passed ordinances in townships across New Jersey. Sick leave covers both mental and physical health. Illness, injury and health conditions are covered and employees can use sick time to seek a medical diagnosis, obtain preventative care, treatment or medical care. Sick time can be used for the employee or for a family member’s health condition.
Likewise, circumstances deemed a public safety risk are also covered under sick time. If a public official closes the employee’s work or a school or place of care of the employee’s child or family member, then sick time is available. Similarly, in the event that a public health employee determines that the presence of the employee, child, or family member would jeopardize the health of others because of their exposure to a communicable disease, then the employee can take time off for themselves or to care for the family member. Sick time can be used, even if the employee or the family member hasn’t actually contracted the disease. Earned sick time has no specific provisions for victims of domestic violence, sexual assault or stalking to seek legal redress or to relocate for safety.
- Mental or physical illness: to care for, diagnos, obtain treatment, or preventative care.
- If the business, place of care, or school has been closed due to a public health emergency
- If the employee or family member has had exposure to a communicable disease, even if the employee or family member hasn’t contracted the disease.
Family Member Definitions
The Earned Sick Leave Ordinance recognizes biological, adopted, foster, and step relationships are recognized. For the employee’s child and parental relationships also include legal wards, in loco parentis and parents or children of spouses, domestic or civil union partners. Grandparents and a grandparents domestic partner, spouse, and civil union partner are all recognized. Grandchildren and siblings are accepted family relationships, but there are no special provisions for additional legal and other relationships such as foster siblings or siblings in law.
- Child: biological, adopted, step, foster, child of a domestic partner or civil union
- Parent: biological, adopted, step, foster, parent or foster parent of a domestic partner or civil union and parent in law.
- Spouse: domestic partner or civil union partner
- Grandparents: including spouses and partners of grandparents.
Sick Leave Bank and Minimum Usage
Trenton employees start accruing paid sick leave on the initial date of employment, but are restricted from using accrued sick leave until the 90th calendar day after employment commences. There is one exception to the 90 day grace period, when an employee is being reinstated with the same employer within 6 months of leaving employment with that employer.
Employers must maintain records of terminated employees and their accrued, unused sick leave hours. If a previous employee returns to work within 6 months of leaving the employer, all of their previously accrued sick leave must be reinstated back to that employee. That employee will not have to pass through another 90 day waiting period, but is eligible to immediately start using accrued sick leave. It doesn’t matter if the employee left voluntarily or involuntarily. The law is silent about employees who left their employer during the original 90 day grace period and whether or not they have to complete the original 90 day period. Upon the conclusion of employment, businesses are not required to payout sick leave.
Workers can use sick leave in the smallest of 1 hour increments or in the smallest time increments that the employer’s payroll system accounts for other types of absences or leaves.
Employers are allowed to lend sick leave hours to employees before accrual of hours and are under no liability for choosing to do so. Employers who deny a request to loan sick leave are also under no liability. Sick leave hours transfer to a new owner or successor employer. Accrued hours also transfer with employees who transfer within the same company.
Coordinating with Existing Time Off Policies
Trenton’s Sick Leave Ordinance allows businesses to continue to use existing time off policies and to have more generous policies than is required by law. In order for a business with an existing paid time off (PTO) policy to maintain compliance, the policy must provide at least the minimum sick leave required by law and must allow employees to use sick leave for the allowable uses defined in the ordinance. Time off must be awarded at at least the rate of 1 hour for every 30 hours worked or 40 hours a year and employees must be allowed to use sick leave for the reasons stated in the ordinance. HR managers and Payroll Professionals with existing leave policies should examine their guidelines to make sure that all allowable reasons for leave in the sick leave law are also allowed in the company’s policy. Employers should also make sure that their policies include the notification required by law.
Reasonable Documentation and Notification of Sick Leave Usage
Employers are allowed to request written confirmation from an employee that sick leave was used for acceptable purposes. If the employee takes off more than 3 consecutive days of sick leave, then the employer can seek further documentation of sick leave usage from a health care provider. The documentation cannot disclose the nature of the sick leave.
Businesses can have a policy that requires employees to notify the employer of sick leave usage, but the policy can’t require more than a 7 day notice if sick leave is foreseeable. If sick leave is not foreseeable, then notification can occur as soon as it’s reasonable for the employee to notify the employer.
Trenton employees are protected from any kind of retaliation under the law. Employees can exercise their rights of paid sick leave and cannot be prohibited from attempting to exercise their rights. They can file complaints, work with the Agency in investigations, participate in any judicial action relating to the act and inform others of their rights under the act. Employees are protected from any sort of threat, discipline, discharge, suspension, demotion, reduction or hours, or any other adverse action. This includes protection for employees who communicate with coworkers about a violation of the law.
Notification and Records
Companies must provide notification of employee rights to sick leave and their protection against retaliation when a new employee is hired. Furthermore, a poster, provided by the city, must be posted in the employee workplace in a conspicuous place where employees can access the information. Notices and posters must be provided in English and in any other first language that 10% or more of the employees speak. Trenton City provides notices in English and Spanish. Notices include the right to sick leave, accrual rate, amount of sick time available for accrual, and the terms of its use. Additionally notification must include the rights of the employee against retaliation and the right to file a complaint.
Fines and Remedies provided by the Sick Time Ordinance
Businesses are fined $2,000 per violation. Each day is considered to be a new infraction. Additionally, employers are subject to restitution to the employee including restitution, reinstatement, injunctive and declaratory relief. Employees can file with The Department of Health and Human Services, as well as filing a civil suit.
Time and Attendance and Record Retention
All employers affected by the Trenton Paid Sick Leave Law must maintain records of hours worked by employees, as well as sick leave accrual and usage. This is important because the ordinance presumes that a violation has occurred if the business doesn’t maintain accurate or consistent records and a complaint is filed. Yet, the ordinance fails to define a set number of years for record retention and fails to place a specific statute of limitations for employees to file grievances. This makes it crucial for business owners and managers to maintain consistent and detailed records. Such records can be difficult to maintain on a manual basis. Business owners should consider an automated timekeeping system as manual time cards are more easily altered and lost. In addition automatic systems will including employee information, hours worked, sick leave accrual and usage. Businesses should also have written documentation of sick leave requests as well as a written employee handbook. Most local and state ordinances across the country require 3-4 years. Business owners should consider maintaining records for at least that long. It is more important than ever that companies have an electronic timekeeping system that provides accurate and automatic records. This can help the company to stay compliant with employment laws and to avoid fines and penalties.
Let SwipeClock Help
Businesses who have employees in more than just Trenton and Montclair may have to comply with multiple conflicting City ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities. The company’s products, including TimeWorks Plus, Time Simplicity, and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage. SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com.
Written by Annemaria Duran. Last updated Feb 27, 2017