Paid Family Leave Details Outlined for Chamber

COURT HOUSE — New Jersey Paid Family Leave began funding through payroll deductions as of Jan. 1, 2009.
In general, employees love it; employers despise it.
On Jan. 30, the Cape May County Chamber of Commerce hosted a seminar presented by Fox Rothschild LLC at Atlantic Cape Community College to inform members about the new leave policy.
From the bill’s inception, the chamber opposed it.
Through lobbying by the chamber and similar entities, the result was somewhat more of a “business-friendly benefit.”
Attorney John Grossman of the firm introduced Ian Meklinsky, who presented the two-hour session.
Meklinsky is an expert in labor and employment law who has authored many articles and lectures frequently.
His first admonition to employers, if they have not already done so, posts the mandatory document on their official bulletin board to inform employees.
He also urged them to inform employees via e-mail about the act, taxes being withheld and when they will be eligible for the benefit (after July 1).
Meklinsky said he asked Gov. Jon Corzine why he placed New Jersey “in the front lines of employment legislation?”
“He suggested of all arguments against N.J. Paid Family Leave, the strongest was that it should be done on the federal level. Since he failed to get it passed through the Senate (when he was a senator), this was his opportunity to make New Jersey the laboratory to push forward,” said Meklinsky.
Employees, at present, are the only contributors into the system at a $26 per year maximum. The rate of .09 percent for this year is on a taxable wage base for benefits of $28,900.
For that investment, workers who take the benefit may get $546 per week for up to six weeks.
To fund the program, Meklinsky said the state Department of Labor would borrow $25 million.
“I don’t know your personal view of government, but to encourage the state to borrow (that sum) you have to scratch your head,” said Meklinsky.
At present, there is no employer contribution “yet,” said Meklinsky.
He cited recent news regarding the economic condition of the state’s unemployment compensation fund, which is “already in a precarious position because of the number of claims. Let’s be realistic,” he added.
“These are funds funded through taxes. Ultimately, the view of management employment lawyers to fund this program there will have to be an employer match,” he continued.
The statute does not apply to independent contractors. Meklinsky pointed out the state’s criteria for that classification, which gave pause to some of the 85 or so attendees.
They must fulfill a three-part test:
* They must be free from the employer’s control.
* Perform a service outside of what the employer’s business normally does.
* Person must be engaged in an independent established trade, occupation, profession or business.
The Department of Labor and courts have ruled that if an individual works 75 percent or more of their time for the employer, “they are your de facto employee,” Meklinsky said.
Employees who take time off to be with a seriously ill immediate family member must certify it with four items:
* Date the condition began
* Duration
* Medical facts and circumstances
* Statement as to why the employee needs time off to take care of the individual.
The form necessary to accomplish that is still in the creation process, Meklinsky said.
“As a practical matter, who ever saw them (state) deny temporary disability?” he asked. “They will not deny this one either.”
In its originally introduced form, the benefit was 12 weeks. Thanks to lobbying efforts of entities like the chamber, he said, it was reduced to six weeks.
The employer may still require the employee to take two weeks vacation as part of the six weeks off, he added.
Pregnancy brings on a new set of calculations, which are a combination of temporary disability and other types of payments.
The benefit does not cover an employee’s personal sickness. That may be covered under temporary disability insurance, he said.
Under question of who is a family member, Meklinsky said would include spouses and civil union partners.
There is “a considerable problem” for employers who are covered under the federal laws, since on the federal level, because of the Defense of Marriage Act, signed under the Bush Administration, “marriage for federal law was between a man and a woman, they don’t recognize civil unions,” he added.
Moreover, while parents may take off to be with children, that, too, is clouded because of what New Jersey considers a parent to be.
“Any individual, regardless of blood relationship, is considered a parent. The term is “in loco parentis.”
That means, should someone “have day to day responsibility to take care of John’s son or daughter, I have, under the New Jersey Family Leave Act, the right to take time off if that child becomes seriously ill, but I am not entitled to compensation,” Meklinsky said.
Because of the provision to allow parents off to bond with new-borns, Meklinsky told employers, “For all who have a lot of women working, how many women had babies in the work force a year back from July? I guarantee a lot of people will be taking time off to bond with their child. For smaller employers, who have women with children since last July, you can see the impact,” Meklinsky said.
He also cautioned employers to ensure leave time for both sexes is equal, so as not to place oneself in line for a discrimination suit.
If such an extension is not possible, “Document with legitimate business reasons for not extending leave time,” he said.
“Be business oriented. Don’t make leave an entitlement. Do not use leaves as a means of dealing with employment problems,” he warned.
New Jersey is the nation’s third state to implement such a paid family leave policy. The others are California and Washington.
Contact Campbell at (609) 886-8600 ext 28 or at: al.c@cmcherald.com