The New Jersey Senate once again delayed a vote on the merits of S799, which would require all businesses in the state to offer their employees paid sick leave, choosing instead to amend the bill and hold it for further consideration.
We appreciate the effort to address one of the concerns that has been raised – namely, that employers who already offer generous leave policies would nevertheless be burdened with record-keeping requirements entirely inapplicable to their policies. Unfortunately, the amendment did not effectively address the concern, and of course there are several other problems yet to be addressed.
As currently drafted, an employer who does almost anything related to paid sick leave, including simply informing any person about the availability of paid sick leave, gets a 90 day window during which any adverse employment action they take is presumed to be retaliatory. Because of that presumption, any employer who is sued during that 90 day window will have the burden of proving their innocence in court.
This is a radical policy choice. In the vast majority of civil suits, the plaintiff has the burden of proving the claims they are alleging. This bill turns that system on its head by presuming the employer is guilty.
Adding to our concern is the prescriptive nature of the bill. Even as amended, it will be difficult to comply with all of the imprecise language of the legislation.
For example, it is not clear that shift reassignments made in response to business demands would be lawful under this legislation, since “retaliatory action” is defined to include even an unfavorable work assignments. Under these conditions, employers would have difficulty effectively managing their employees without generating a lawsuit.
From the plaintiff’s perspective, there will be little downside to bringing a lawsuit whenever an employee feels slighted. If they win, plaintiffs are entitled to actual damages, plus an equal amount of punitive damages, plus attorney fees and court costs (which will incentivize lawyers to seek out these types of cases). If a plaintiff loses, it is likely that his or her lawyer will be on the hook for any costs incurred since contingency fee agreements are common in the employment law context.
Defendants, on the other hand, will be inclined to settle these cases quickly, regardless of their merit, because litigation is so costly. Unlike successful plaintiffs, even if they win, defendants would still be responsible for paying their own legal fees, which could cost far more than it would take to settle. The added risk of having to pay punitive damages and the plaintiff’s attorney fees if the case is decided against them, makes settling an even more appealing option.
The compliance and legal costs driven by this legislation would of course all be passed on to consumers in the form of higher prices and less business investments in our state.