Because it is unsettled who — the employer or, instead, the employee — bears the burden of showing that an employee has worked the 1,000 base hours, during the immediately preceding twelve-month period, that render the employee eligible for leave under the New Jersey Family Leave Act, N.J.S.A. §§ 34:11B-1- 34:11B-16 (the “NJFLA”), employers in New Jersey are best advised to maintain true and accurate records of the hours worked each day and each workweek, not only (as New Jersey law requires) as to each non-exempt employee, but also as to each exempt employee.
Under the New Jersey Family Leave Act, all private employers in New Jersey who employed 50 or more individuals for 20 or more workweeks during the then-current or preceding calendar year, and all public employers in New Jersey, must allow “[e]mployee[s]” to take, and to return to their jobs after taking, as much as 12 weeks of unpaid leave in a 24-month period to provide care made necessary by reason of either (1) the birth or placement for adoption of a child or (2) the serious health condition of a child, parent, or spouse, or one partner in a civil union couple. NJFLA §§ 3-4, 7, N.J.S.A.§§ 34-11B-3 – 34-11B-4, 34-11B-7.
For purposes of the NJFLA, an ” ‘[e]mployee’ ” is an individual who is employed for at least twelve (12) months by an employer in New Jersey for not less than 1,000 “base hours” during the immediately preceding twelve-month period. NJFLA §§ 3(f)(3), N.J.S.A. §§ 34-11B-3(f)(3).
For New Jersey Family Leave Act purposes, ” ‘Base Hours’ ” are the hours of work for which an employee is paid compensation. N.J.A.C. § 13:14-1.2. Base hours include overtime hours for which the employee is paid additional or overtime compensation, and hours for which the employee receives workers’ compensation benefits. Id. § 13:14-1.2. At the option of the employer, base hours may include hours for which the employee receives other types of compensation, such as administrative, personal leave, vacation or sick leave. Id.
Exempt employees pose particular difficulties for employers under the NJFLA. The vast majority of employers in New Jersey do not maintain hours worked for their exempt employees. Nor are employers in New Jersey required to keep hours worked for their exempt employees. Although the New Jersey Wage and Hour Law, N.J.S.A. §§ 34:11-56a – 34:11-56a38 (the “NJWHL”), requires an employer in the Garden State to maintain true and accurate records, as to each employee, of the hours worked each day and each workweek, the NJWHL excludes, from the employees as to whom an employer must keep such records, any individual who falls with in the executive, administrative or professional exemption to the NJWHL’s overtime pay requirements. N.J.S.A. § 34:11-56a20; N.J.A.C. § 12:56-4.1.
Because very few employers in New Jersey keep hours worked for their exempt employees, it may be very difficult for an employer in New Jersey to prove that, within the last 12 months, a particular employee has not worked the 1,000 hours required by the New Jersey Family Leave Act, even if the employer knows that, within the last 12 months, the employee has taken a substantial amount of leave.
Further, the courts differ on whether it is the employer or, instead, the employee who bears the burden of showing that the employee has not worked the 1,000 hours required for NJFLA leave.
In Rodriguez v. JSPLTC, LLC, No. 12-6565 (D.N.J. Apr. 25, 2013), the U.S. District Court for the District of New Jersey, in dismissing, for failure to state a claim upon which relief can be granted, a billing specialist’s claim that her former employer, a pharmacy, interfered with the plaintiff’s rights under, among other statutes, the NJFLA, placed on the plaintiff employee the burden of showing that, in the immediately preceding 12 months, she had worked not less than 1,000 hours. The Rodriguez Court observed: “[The plaintiff employee] fails to allege any facts regarding the hours she worked in the twelve month period leading up to her leave request. Absent such allegation, Plaintiff cannot establish that she is an eligible employee within the meaning of the NJFLA.” Rodriguez, No. 12-6565, slip op. at 6.
By contrast, in McConnell v. State Farm Ins. Co., 61 F. Supp. 2d 356 (D.N.J. 1999), although the U.S. District Court for the District of New Jersey granted summary judgment dismissing the plaintiff employee’s complaint that her ex-employer, an automobile insurer, fired her in violation of the NJFLA, the Court arguably held that the employer bore (and had satisfied) the burden of demonstrating that, in the last 12 months, the employee had not worked 1,000 hours. The McConnell Court credited the ex-employer’s human resources manager’s certification, the plaintiff’s payroll records, and an individual detail report of the plaintiff’s absences, all of which the ex-employer submitted, as showing that “plaintiff was not employed for at least 1,000 hours during the twelve months preceding” her leave request, and the Court observed: “[the defendant ex-employer] is justified to use its payroll records of plaintiff’s absences to determine her base hours.” McConnell, 61 F. Supp. 2d at 360-361.
Take-Aways for Employers
As stated above, because it is unsettled who — the employer or, instead, the employee — bears the burden of showing that an employee has worked the 1,000 base hours, during the immediately preceding twelve-month period, that render the employee eligible for NJFLA leave, the best practice for employers in New Jersey is to maintain true and accurate records of the hours worked each day and each workweek, not only (as the NJWHL requires) as to each non-exempt employee, but also as to each exempt employee.