Of course, appropriate law limits this discretion where there is a written contract specifying a certain duration of employment or if the employer’s action violates applicable laws (These laws include Family Leave Acts, Discrimination Laws, implied promises contained in written or oral policies, and New Jersey’s Conscientious Employees Protection Act.) In the context of Family Leave laws, those employers who are covered under the Federal or New Jersey State Acts (Under Federal law, covered employers are those who employ 50 or more employees for each working day during 20 or more calendar weeks in the current or preceding calendar year, either at the main work site or without 75 miles of that work site. The New Jersey law applies to employers with 50 or more employees.) Must still comply with the laws and regulations promulgated under these Acts. However, these amendments do not confer additional leave rights to employees.  
 

Must the employer pay the employee’s wages for this paid leave period? Family Leave Insurance benefits are fully funded by employee contributions through payroll deductions, which began on January 1, 2009.  The employer will not be required to contribute to this plan. In addition, an employer can require an employee to use up to two weeks of any paid sick leave, vacation time or other leave as full pay, if made available by the employer, prior to utilizing Family Leave Insurance benefits.
 

For what reasons may an employee claim these benefits? Benefits shall be granted for an employee to bond with a child during the first twelve months after the child’s birth, if the covered individual or the domestic partner or civil union partner of the covered individual, is a biological parent of the child, or for the first twelve months after the placement of the child for adoption with the covered individual. In addition, benefits can be claimed to care for a “family member” with a serious health condition as defined in the law. Benefits are NOT available due to the serious health condition of the covered employee.
 

“Serious Health Condition” means an “illness, injury, impairment or physical or mental condition”, which includes any of the following:

1.    In-patient care or continuing treatment by a health-care provider, including any period of incapacity or subsequent treatment in connection with in-patient care. (a) “Period of incapacity” means inability to work, attend school or perform other regular daily activities due the serious health condition, treatment therefore, or recovery there from. OR  
 

2.    Continuing treatment by a health-care provider, which involves one or more of the following: (a)    A period of incapacity (inability to attend work, school, etc.) for more than three consecutive calendar days, that also involves.
(i)    Treatment two or more times by a health-care provider.   
OR
(ii)    Treatment by a health-care provider on at least one occasion, which results in a regime of continued treatment. Treatment includes prescription drugs, such as antibiotics. Regimes, such as resting, drinking fluids, taking aspirin, which can be initiated without visiting a health-care provider, are not sufficient.

3.    Any incapacity due to pregnancy or pre-natal care.

4.    Conditions not currently incapacitating but which require multiple treatments.

5.    Any period of incapacity or treatment for such incapacity due to chronic serious health condition.

6.    A period of incapacity, which is permanent or long-term due to a condition for which treatment may not be effective.
 

The above-listed inclusions are broadly stated and there are refinements and exclusions, which should be evaluated in any given situation.

 Who is eligible for Family Leave Insurance benefits? An employee can collect benefits if he or she is currently employed in “covered employment” or out of “covered employment” for less than two weeks. Employment, including employment with governmental entities, covered under the New Jersey Unemployment Compensation Law is covered with respect to Family Leave Insurance.
 

Notwithstanding the above, an employee is not qualified for any period that:

1. The employee receives temporary disability benefits from any source;
2. The employee receives unemployment insurance benefits;
3. The employee receives full salary or paid time off;
4. The employee is working;
5. The employee is under family leave, which did not start while the claimant was a covered individual or within fourteen days of the claimant’s last date of work;
6. The employee was on family leave for the care of a family member and the care recipient was not under the care or supervision of the health-care provider;
7. The employee is out of work due to a stoppage of work, which exists because of labor dispute at the claimant’s place of employment; or
8. The employee has been discharged by the most recent employer for gross misconduct under applicable unemployment compensation law. 

How much is the benefit and for how long does it last? An employee can receive a maximum of six weeks of Family Leave Insurance benefits in a twelve-month period, which is denoted as the three hundred sixty-five consecutive days that begins with the first day that the employee establishes a valid first claim for Family Leave Insurance benefits. An employee may re-establish a claim within the same period for a different care recipient, or a claim during or following employment with a different employer. However, the employee cannot receive more than six weeks of benefits during the twelve-month period.  In the event of care for a family member with a serious health condition, claims may alternatively be filed for intermittent weeks or for forty-two intermittent days during the twelve-month period. 

The weekly benefit rate is based on the employee’s average weekly wage in the eight calendar weeks immediately before the week in which the benefit commences. The rate is two-thirds of this wage, up to a maximum of Five Hundred Forty-Six ($546.00) Dollars. 
 

What steps must an employee take to apply for these benefits? If an employee intends to take the benefits to participate in providing care for a family member with a serious health condition, he or she must give the employer reasonable and practicable notice, unless the time of the leave is unexpected or the time of the leave changes for unforeseeable reasons. The request must be supported by a medical certification. In addition, a reasonable effort must be made to schedule the leave so as not to unduly disrupt the operations of the employer.  If possible, the employee will be required to provide a schedule of the required leave days. In the case of an employee who intends to claim insurance benefits to bond with a newborn or newly adopted child, thirty days prior notice must be given, except if the leave is unforeseeable. Failure to do so will result in a loss of two days leave. 

This analysis is intended to highlight the most salient provisions of the Family Leave Insurance benefits law, and has been derived from the Family Leave Insurance Fact Sheet published by the Department of Labor as well as other sources. Details and interpretations of the law will be published in the New Jersey Administrative Code. If there are any questions relative to the application of this new benefits law, an employer should consult counsel so as to ensure proper compliance.

Of course, appropriate law limits this discretion where there is a written contract specifying a certain duration of employment or if the employer’s action violates applicable laws (These laws include Family Leave Acts, Discrimination Laws, implied promises contained in written or oral policies, and New Jersey’s Conscientious Employees Protection Act.) In the context of Family Leave laws, those employers who are covered under the Federal or New Jersey State Acts (Under Federal law, covered employers are those who employ 50 or more employees for each working day during 20 or more calendar weeks in the current or preceding calendar year, either at the main work site or without 75 miles of that work site. The New Jersey law applies to employers with 50 or more employees.) must still comply with the laws and regulations promulgated under these Acts. However, these amendments do not confer additional leave rights to employees.  As such, while any employee who is covered by the New Jersey Disability Benefits law may avail himself/herself of Family Leave Insurance benefits, if they quality under the new law, those who are not otherwise protected by the Leave or other laws, do not gain any additional job protection. For example, if a company employing twenty individuals needs to eliminate the position of an employee on paid leave, due to current economic conditions, the employer may do so lawfully.
               

Must the employer pay the employee’s wages for this paid leave period? Family Leave Insurance benefits are fully funded by employee contributions through payroll deductions, which began on January 1, 2009 (The taxable wage base is the same as Temporary Disability Insurance and Unemployment Insurance. The amounts will vary on an annual basis. The percentage of withholding in 2009 will be 0.0009 of the taxable wage base. This will increase to 0.0012 for each subsequent year.) The employer will not be required to contribute to this plan. In addition, an employer can require an employee to use up to two weeks of any paid sick leave, vacation time or other leave as full pay, if made available by the employer, prior to utilizing Family Leave Insurance benefits.
 

For what reasons may an employee claim these benefits? Benefits shall be granted for an employee to bond with a child during the first twelve months after the child’s birth, if the covered individual or the domestic partner or civil union partner of the covered individual, is a biological parent of the child, or for the first twelve months after the placement of the child for adoption with the covered individual. In addition, benefits can be claimed to care for a family member with a serious health condition. “Family member” is defined as a child, spouse, domestic partner, civil union partner, or parent of a covered individual. “Child” means a biological, adopted, or foster child, step-child or legal ward of a covered individual, child of a domestic partner of the covered individual, or child of a civil union partner of the covered individual, who is less than nineteen years of age or is nineteen years of age or older but incapable of self-care because of mental or physical impairment.
 

Benefits are NOT available due to the serious health condition of the covered employee (In this respect, the categories are borrowed from New Jersey’s Family Leave Act, which, unlike the Federal Act, excludes leave for the employee’s own serious health condition). “Serious Health Condition” means an “illness, injury, impairment or physical or mental condition”, which includes any of the following:
 

1.    In-patient care or continuing treatment by a health-care provider, including any period of incapacity or subsequent treatment in connection with in-patient care. (a) “Period of incapacity” means inability to work, attend school or perform other regular daily activities due the serious health condition, treatment therefore, or recovery there from. OR   
 

2.    Continuing treatment by a health-care provider, which involves one or more of the following: (a)    A period of incapacity (inability to attend work, school, etc.) for more than three consecutive calendar days, that also involves.
(i)    Treatment two or more times by a health-care provider.    
OR
(ii)    Treatment by a health-care provider on at least one occasion, which results in a regime of continued treatment. Treatment includes prescription drugs, such as antibiotics. Regimes, such as resting, drinking fluids, taking aspirin, which can be initiated without visiting a health-care provider, are not sufficient.

3.    Any incapacity due to pregnancy or pre-natal care.

4.    Conditions not currently incapacitating but which require multiple treatments.

5.    Any period of incapacity or treatment for such incapacity due to chronic serious health condition.

6.    A period of incapacity, which is permanent or long-term due to a condition for which treatment may not be effective.
 

The above-listed inclusions are broadly stated and there are refinements and exclusions, which should be evaluated in any given situation.

Who is eligible for Family Leave Insurance benefits? An employee can collect benefits if he or she is currently employed in “covered employment” or out of “covered employment” for less than two weeks. Employment, including employment with governmental entities, covered under the New Jersey Unemployment Compensation Law is covered with respect to Family Leave Insurance. A claimant must have had such employment in at least twenty calendar weeks (base weeks) in New Jersey covered employment with earnings of One Hundred and Forty-Three ($143.00) Dollars or more per week, or have earned Seventy-Two Hundred ($7200.00) or more in such employment during the fifty-two weeks (base year) immediately prior to the week in which the Family Leave claim begins.

 

Notwithstanding the above, an employee is not qualified for any period that:

    1.    The employee receives temporary disability benefits from any source;
    2.    The employee receives unemployment insurance benefits;
    3.    The employee receives full salary or paid time off;
    4.    The employee is working;
    5.    The employee is under family leave, which did not start while the claimant was a covered individual or within fourteen days of the claimant’s last date of work;
    6.    The employee was on family leave for the care of a family member and the care recipient was not under the care or supervision of the health-care provider;
    7.    The employee is out of work due to a stoppage of work, which exists because of labor dispute at the claimant’s place of employment; or
    8.    The employee has been discharged by the most recent employer for gross misconduct under applicable unemployment compensation law.

 

How much is the benefit and for how long does it last? Benefits can be claimed commencing July 1, 2009. The Department of Labor and Workforce Development, Division of Temporary Disability Insurance, will publish a prescribed form after June 1, 2009. An employee can receive a maximum of six weeks of Family Leave Insurance benefits in a twelve-month period, which is denoted as the three hundred sixty-five consecutive days that begins with the first day that the employee establishes a valid first claim for Family Leave Insurance benefits. An employee may re-establish a claim within the same period for a different care recipient, or a claim during or following employment with a different employer. However, the employee cannot receive more than six weeks of benefits during the twelve-month period.

 

In the event of care for a family member with a serious health condition, claims may alternatively be filed for intermittent weeks or for forty-two intermittent days during the twelve-month period. The amendments impose a waiting week for the benefits to commence. No benefits will be paid for the first week, or any portion of that week, until the employee receives benefits for three weeks immediately following the waiting week. However, if the employee has been on temporary disability due to his or her own illness, there is no waiting period for the Family Leave Insurance claim to commence.

 

The weekly benefit rate is based on the employee’s average weekly wage in the eight calendar weeks immediately before the week in which the benefit commences. The rate is two-thirds of this wage, up to a maximum of Five Hundred Forty-Six ($546.00) Dollars. The daily benefit rate is computed at one-seventh of the weekly benefit rate. The maximum amount in any one-year is six weeks, or one-third of the base year earnings, whichever is less.
   
 

What steps must an employee take to apply for these benefits? If an employee intends to take the benefits to participate in providing care for a family member with a serious health condition, he or she must give the employer reasonable and practicable notice, unless the time of the leave is unexpected or the time of the leave changes for unforeseeable reasons. The request must be supported by a medical certification. In addition, a reasonable effort must be made to schedule the leave so as not to unduly disrupt the operations of the employer. If a request is being made for intermittent leave in the circumstances, the minimum of fifteen days notice must be given, except if there is an emergency or other unforeseen circumstances. If possible, the employee will be required to provide a schedule of the required leave days. In the case of an employee who intends to claim insurance benefits to bond with a newborn or newly adopted child, thirty days prior notice must be given, except if the leave is unforeseeable. Failure to do so will result in a loss of two days leave. No intermittent leave is available for this category of benefit, unless agreed to by the employer. In that case, intermittent leave must be taken in periods of seven days or more.

 

A party who believes they have been aggrieved by application of the process will have formal appeal rights within the Division of Temporary Disability Insurance. Appeal rights and provisions will be explained on all decisions issued by the Division.

 

This analysis is intended to highlight the most salient provisions of the Family Leave Insurance benefits law, and has been derived from the Family Leave Insurance Fact Sheet published by the Department of Labor as well as other sources. Details and interpretations of the law will be published in the New Jersey Administrative Code. If there are any questions relative to the application of this new benefits law, an employer should consult counsel so as to ensure proper compliance. No doubt, unique situations will be presented and the full extent of the law will unfold as litigation ensues.

The employee files for unemployment insurance. The company responds by advising that the employee consistently failed to comply with the established standards of conduct in the workplace. You are comfortable that the statement will remain confidential, as statements by the parties in an unemployment claim are not admissible in civil actions (N.J.S.A. 43:21-11(g)). However, the disgruntled ex-employee responds by asserting that the company’s reason for discharge is false and is motivated by retaliation for complaining about potentially discriminatory conduct, which took place during the course of employment.

Thereafter, the employee files a lawsuit, claiming that the company’s actions have violated N.J.L.A.D’s anti-retaliation provisions. Indeed, the alleged discriminatory conduct took place more than two years before the filing of the employee’s new complaint! The company feels satisfied that the former employee would not be allowed to pursue this claim. First, since the original conduct occurred more than two years prior to the filing of the complaint, suit would be barred by the statute of limitations. Second, the employee already executed a release, and received severance, on the assumption that he would be barred from bringing any further employment claims.

In the recent case of Roa v.LAFE, et al, 2008 WL 2627625 (App.Div. 2008) an Appellate Division Court shattered the paid-for peace of the employer, by ruling under a similar fact scenario, that N.J.L.A.D.’s anti-retaliation provisions will apply to the company’s conduct, even after termination of the employment relationship.

One can conjure up many post-employment discoveries, which could put a company in jeopardy, long after it pays for closure of the employment relationship. One example is also treated in the Roa case. An employee may allege that in retaliation for the employee’s asserting a discrimination claim, the employer falsely reported a termination date to a medical insurance carrier, resulting in the denial of benefits while the claim is being investigated. The anti-retaliation provision could be invoked if there is a post-termination denial of benefits, less than satisfactory employment reference, or any other action taken after the employee’s termination.

The Appellate Court reasoned that the retaliation claim is a separate cause of action under the L.A.D. In addition, this activity could be deemed as a “continuing violation” of the L.A.D. If so, an employee could claim that any actions during the prior two-year period could be the subject of a new discrimination claim and could revive a prior claim. In this case, even though the plaintiff filed the lawsuit more than two years after the date of termination, it was filed within two years of the date the plaintiff knew or should have known of facts supporting the retaliation claim.

A second cautionary point in this case involves failure to inform employees of their rights under the L.A.D. through either workplace posters or employee manuals. The Court discussed several cases, which held that failure to post required notices will toll (suspend) the statute of limitations for bringing L.A.D. suits. However, this Court clarified that the statute of limitations will only be tolled  until the aggrieved employee seeks out an attorney or requires actual knowledge of his rights. The adoption of “equitable” tolling requires the exercise of reasonable insight and diligence by a person seeking its protection (citations omitted).

What lessons can be learned by the conscientious employer? Certainly, a company should continue to consider entering into termination agreements, with releases of liability, for departing employees. This is particularly true where a company would otherwise offer severance benefits, legal consideration for the employee’s release of claims. This will maximize the company’s benefit for the price paid in severance benefits. The employer’s counsel should attempt to negotiate a strong provision wherein the employee acknowledges that he/she is unaware of any facts, which would support a discrimination claim. This would be stronger than the typical language, wherein the employer states that payment of severance is not an admission of liability for discrimination claims. It would be more difficult for the employee to later assert that post-termination actions on the part of the employer constituted retaliation for workplace discrimination.

Second, a company should not be lulled into complacency, even after a separation agreement and release is executed. Its representatives must still be careful not to conduct themselves in such a way, which will create negative consequences to the former employee, after leaving the employment. This case will reinforce the practice of not providing a post-termination employment reference. In addition, special care must be taken to make sure that the ex-employee is paid all earned wages, accrued vacation and sick time, or other benefits. A company must also make sure that in response to governmental or insurance inquiries, it accurately reports data such as dates of employment, wages paid, insurance-related information, etc.

Finally, the case, again, reinforces an employer’s duty to inform employees of their rights under the L.A.D., either through workplace posters or employee manuals.

This case underscores the necessity of having clear, well-defined employment policies and procedures, which are compliant with New Jersey law. It also demonstrates the necessity to consult counsel when planning to discharge an employee to make sure that termination agreements keep pace with changes in the law.