In This Issue:

IMMINENT DEADLINE FOR NEW JERSEY EMPLOYERS

• The New Jersey Paid Family Leave Law's January 1st deadline
• A brief clarification of this new law
• Employer "to do" list towards compliance

HOLIDAY PARTIES: HOW EMPLOYERS CAN EXERCISE REASONABLE CARE

• 9 tips to enhance holiday safety

HARRASSMENT LIABILITY IN NEW JERSEY: A SHARP REMINDER TO EMPLOYERS

• A new court ruling puts employers at risk
• A call to eliminate workplace harassment

DEADLINES ARE DAYS AWAY!

Beginning January 1, 2009, nearly all New Jersey employers will be subject to New Jersey's Paid Family Leave Law and must take steps to ensure full compliance on day one - January 1st.

The law applies to all New Jersey employers who are subject to the Unemployment Compensation Law - meaning all employers who have at least one employee and have paid the employee a minimum of $1,000 in the current or preceding calendar year. Full compliance means additional payroll deductions AND employee communications in accordance with the law.

Of importance, the New Jersey Paid Family Leave Law is not a "leave law." Rather, it provides compensation to eligible individuals.

HERE'S BRIEFLY HOW THE NEW JERSEY PAID FAMILY LEAVE LAW WORKS:

• Authorizes New Jersey employees to take up to six weeks of paid leave to care for newborn and newly-adopted children and sick "family members."
• Defines family members of covered individuals as a child, spouse, domestic partner, civil union partner or parent.
• Provides ability for individuals who are eligible to receive compensation under the Family Leave Insurance provisions of the New Jersey Temporary Disabilities Law beginning July 1, 2009.
• Allows employers to participate in the state-operated plan or alternately allows them to participate through a private plan
• Requires no employer contribution; employee deductions for family leave insurance benefits need to commence as of January 1, 2009.

IMPORTANT CLARIFICATIONS ARE:

• New Jersey Paid Family Leave Law is NOT a leave law.
• This means unless an employee's employer has 50 or more employees making them a covered employer under the Federal Family Medical Leave Act (FMLA) and/or the New Jersey Family Leave Law (NJFLA) (the NJFLA is distinct from the New Jersey Paid Family Leave law discussed herein), an employee's absence during a covered period is not protected under the New Jersey Paid Family Leave Law.
• Compliance with the new law in no way replaces employers' obligation to comply with other Federal or State Laws.
• New Jersey employers must understand whether they are covered under the FMLA and the NJFLA and abide accordingly. These laws intersect and can be tricky.
• New Jersey employers must also conform to obligations of the New Jersey Workers Compensation Act, New Jersey Temporary Disability Benefits Insurance, as well as the company's internal leave and time off policies. These laws can also intersect.

Because of the potential complexities in the New Jersey Paid Family Leave Law and the other potentially concurrent leave and compensation laws mentioned above, a prudent employer should seek legal advice on how to comply.

HERE IS AN EMPLOYER "TO-DO" LIST REGARDING THE NEW JERSEY PAID FAMILY LEAVE LAW:

1. At this his time (December 15, 2008 deadline) obtain a family leave insurance poster and post it conspicuously in each work place. A lunch room or break area where all employees frequent is a good place to display this poster. Employers can download the family leave insurance poster at: http://lwd.dol.state.nj.us/labor/forms_pdfs/tdi/fli_poster.pdf
2. At this time, provide a written copy of the family leave insurance poster to each employee. Distribution via email is acceptable.
3. Distribute the poster to employees at the following times: (i) at the time of an employee's hiring; (ii) whenever an employee notifies you that he or she is taking time off which may qualify the employee for family leave insurance; and (iii) at any time upon an employee's first request.
4. At this time, determine whether the company will participate in the State-operated plan through New Jersey Temporary Disability Benefits or use a private plan such as a self-insured or a private insurance policy.
5. As of January 1, 2009, deduct an additional portion of the employee wages:
   ~ Deduct .09% from the portion of employee wages subject to the New Jersey Temporary Disability Benefits Law. The yearly total additional deduction is approximately $24.93 and the deduction must be reported to employees in writing on a pay stub or in another notice. In 2010, employers must increase deductions to .12% of wages.
   ~ Employers enrolled through a private plan must take additional steps to satisfy this newly enacted law and such steps are not covered in this newsletter.
6. Become informed about the New Jersey Paid Family Leave Law so your company can in turn inform and/or answer your employees' questions about this deduction and law.
7. Determine if your company's employee handbook and company policies require revision and update as necessary.

Caution: In November a bill was introduced to the New Jersey legislature to delay the enforcement of the New Jersey Paid Family Leave Law. The legislature has not ruled on this bill as of this newsletter's press time. Despite the pending ruling, we caution employers to take steps to ensure compliance with the new law.

THE HOLIDAY PARTY DILEMMA: HOW TO TAKE REASONABLE CARE TO ENHANCE EMPLOYEE SAFETY

This time of year many employers ask advice about holiday parties. Sometimes it's best to just cancel the party or ban alcohol; but often these decisions are simply not feasible.

HERE ARE TIPS FOR EMPLOYERS WHO WANT TO DEMONSTRATE THEIR EXERCISE OF REASONABLE CARE AND ENHANCE HOLIDAY SAFETY:

1. Communicate that attendance is voluntary.
2. Do not conduct business during the party.
3. Redistribute the company's anti-harassment policy (see below).
4. Adopt a policy stating that over-consumption of alcohol at the event is not acceptable and will not be tolerated.
5. Monitor the amount of alcohol served and the amount consumed.
6. Do not let employees serve themselves alcohol.
7. Serve alternative beverages.
8. Arrange for alternate transportation for employees such as cabs.
9. Implement additional preventative measures such as limiting drinks, collecting keys, assigning non-drinking volunteers to monitor alcohol consumption, etc.
   

EMPLOYERS FACE LIABILITY, DESPITE NO KNOWLEDGE OF SEXUAL HARASSMENT

A recent ruling in New Jersey is alarming for companies!

In the fall 2008, a New Jersey court ruled that an employer can be liable under the New Jersey Law Against Discrimination for sexual harassment by a co-worker in the absence of an effective anti-harassment policy even if the employer is unaware of the harassment because it was not reported.

• Under New Jersey law, liability for sexual harassment by a supervisor could be imputed to the employer.
• Now after the courts' recent decision, liability for co-worker sexual harassment may also be imputed to the employer. See Cerdeira v. Martindale-Hubbell, 955 A.2d 317 (App. Div. Sept. 18, 2008)

This decision expands exposure and serves as a sharp reminder that employers should aggressively mitigate the potential for harassment.

HERE ARE SOME EXCELLENT FIRST STEPS:

1. Make sure your company has in place an effective and well-publicized anti-harassment policy.
2. Insure the policy contains an appropriate and workable complaint structure.
3. Train employees and management on this policy.
4. Establish and implement monitoring mechanisms.
5. Demonstrate a commitment of not tolerating workplace harassment with behavior that is consistent with the policy.
6. Constantly apply the anti-harassment policy and complaint mechanisms.
   Communicate that attendance is voluntary.