52 N.J.R. 1673(b)
VOLUME 52, ISSUE 17, SEPTEMBER 8, 2020
52 N.J.R. 1673(b)
NJ - New Jersey Register
SEPTEMBER 8, 2020
LABOR AND WORKFORCE DEVELOPMENT -- DIVISION OF WAGE AND
LABOR AND WORKFORCE DEVELOPMENT > DIVISION OF WAGE AND HOUR COMPLIANCE
Adopted Concurrent New Rules:
Related Employment Discrimination
Proposed: April 20, 2020, at 52 N.J.R. 933(a).
Adopted: August 10, 2020, by Robert Asaro-Angelo, Commissioner,
Department of Labor and Workforce Development.
Filed: August 10, 2020, as R.2020 d.081, without change.
Authority: P.L. 2020, c. 9.
Effective Date: August 10, 2020.
Expiration Date: August 10, 2027.
Summary of Hearing
Officer's Recommendations and Agency's Responses:
The period for submission of written comments to the Department's
Office of Legal and Regulatory Services regarding the concurrent proposed new
rules ended on June 19, 2020. The Department received a [page=1674] written
comment from a single commenter. After reviewing the written comment, the
hearing officer recommended that the Department proceed with adoption of the
concurrent new rules without change.
Summary of Public Comment
and Agency Response:
A written comment was submitted by Cassandra Gomez, Staff
Attorney, A Better Balance, New York, NY (also, on behalf of the National Employment
Law Project and New Jersey Citizen Action).
The submitted comment and the Department's response is summarized
COMMENT: The commenter "as a whole, strongly support[s] these
regulations [N.J.A.C. 12:70]." Specifically, the commenter indicates that
she supports, (1) the Department's definition of the terms "employ,"
"employee," and "employer" within N.J.A.C. 12:70-1.2; (2)
N.J.A.C. 12:70-1.3(a), which contains the statutory entitlement to
reinstatement following a period of protected leave; (3) N.J.A.C. 12:70-1.4,
which contains the statutory prohibition against retaliation for taking or
requesting protected leave; (4) N.J.A.C. 12:70-1.5, which lists the remedies
available to an aggrieved employee; and (5) N.J.A.C. 12:70-1.8, which indicates
that the statutory "ABC test," found at N.J.S.A. 43:21-19(i)(6), will
be used to determine whether an individual is an employee or an independent
contractor under the new chapter. The commenter adds the following
As written, we believe that the State legislature's intention in
passing P.L. 2020, c. 9, was to create protections for workers in addition to
pre-existing protections as provided by other federal, state and local laws,
including the Family and Medical Leave Act (FMLA), Families First Coronavirus
Response Act (FFCRA), Americans with Disabilities Act (ADA), New Jersey Family
Leave Act (NJFLA), New Jersey Temporary Disability Benefits Law, New Jersey
Earned Sick Leave Law, and the New Jersey Law Against Discrimination (LAD). We
urge the Department to make this abundantly clear in the rules and accompanying
RESPONSE: The Department thanks the commenter for her support. As
to the commenter's recommendation, the concurrent proposed new rules set forth
procedures for the processing of complaints filed under P.L. 2020, c. 9. For
example, the concurrent proposed new rules explain that a complaint filed with
the Commissioner under P.L. 2020, c. 9, will be processed in the same manner as
would a claim for wages before the Wage Collection Section within the
Department's Division of Wage and Hour Compliance. The concurrent proposed new
rules also indicate that any appeal of a judgment of the Wage Collection
Section with regard to a complaint filed with the Commissioner under P.L. 2020,
c. 9, will follow the procedure set forth at N.J.S.A. 34:11-63 for the appeal
of a judgment of the Wage Collection Section. The commenter's suggestion is
simply outside the scope of the concurrent proposed new rules. Consequently,
the Department declines to make any change on adoption.
Federal Standards Statement
A Federal standards analysis is not required because the
concurrent new rules are not subject to any Federal standards or requirements.
Specifically, the concurrent new rules are governed by P.L. 2020, c. 9
(N.J.S.A. 34:11D-12 and 13), a State statue. Accordingly, no Federal standards
statement is required.
Full text of the adopted
concurrent new rules follows:
PROHIBITED COVID-19 RELATED EMPLOYMENT DISCRIMINATION
SUBCHAPTER 1. GENERAL PROVISIONS
12:70-1.1 Purpose and scope
(a) The purpose of this chapter is to effectuate P.L. 2020, c. 9,
which, during the Public Health Emergency and State of Emergency declared by
Governor Murphy in Executive Order No. 103 (2020) concerning the coronavirus
disease 2019 (COVID-19) pandemic, prohibits an employer from terminating or
otherwise penalizing an employee, if the employee requests or takes time off
from work based on the written or electronically transmitted recommendation of
a medical professional licensed in New Jersey that the employee take that time
off for a specified period of time because the employee has, or is likely to
have, an infectious disease that may infect others at the employee's workplace.
(b) The chapter shall apply to employers and employees.
The following words and terms, when used in this chapter, shall
have the following meanings unless the context clearly indicates otherwise:
"Act" means P.L. 2020, c. 9.
"Commissioner" means the Commissioner of the Department
of Labor and Workforce Development, or his or her designee.
"Department" means the Department of Labor and Workforce
"Employ" means to suffer or permit to work.
"Employee" includes any individual employed by an
"Employer" includes any individual, partnership,
association, corporation, and the State and any county, municipality, or school
district in the State, or any agency, authority, department, bureau, or
instrumentality thereof, or any person, or group of persons, acting directly or
indirectly in the interest of an employer in relation to an employee.
"Infectious disease" means "infectious
disease" as that term is defined at N.J.S.A. 26:13-2.
"Medical professional licensed in New Jersey" means a
physician, physician assistant, advanced practice nurse, or registered nurse
who is appropriately licensed by the State of New Jersey.
"Protected leave" means leave from work taken by an
employee during the Public Health Emergency and State of Emergency declared by
Governor Murphy in Executive Order No. 103 (2020) concerning the coronavirus
disease 2019 (COVID-19) pandemic, based on the written or electronically transmitted
recommendation of a medical professional licensed in New Jersey that the
employee take that time off for a specified period of time because the employee
has, or is likely to have, an infectious disease that may infect others at the
(a) Upon expiration of a period of protected leave, an employee
shall be restored to the position such employee held immediately prior to the
commencement of the protected leave, with no reduction in seniority, status,
employment benefits, pay, or other terms and conditions of employment. If such
position has been filled, the employer shall reinstate such employee to an
equivalent position of like seniority, status, employment benefits, pay, and
other terms and conditions of employment.
(b) If, during a period of protected leave, the employer
experiences a reduction in force or layoff and the employee would have lost the
employee's position had the employee not been on leave, as a result of the
reduction in force or pursuant to the good faith operation of a bona fide
layoff and recall system including a system under a collective bargaining
agreement, where applicable, the employee shall not be entitled to
reinstatement to the former or an equivalent position. The employee shall retain
all rights under any applicable layoff and recall system, including a system
under a collective bargaining agreement, as if the employee had not taken the
12:70-1.4 Prohibited retaliation
No employer shall discharge or in any way retaliate against or
penalize any employee because such employee requests or takes protected leave.
12:70-1.5 Administrative remedies
(a) When the Commissioner finds that an employer has violated the
Act, the Commissioner is authorized to order:
1. Reinstatement of the employee to employment in the position
held when the protected leave commenced with no reduction in seniority, status,
employment benefits, pay, and other terms and conditions of employment, or if
such position has been filled, reinstatement of the employee to an equivalent
position of like seniority, status, employment benefits, pay, and other terms
and conditions of employment; and/or
2. The assessment of an administrative penalty against the employer
of $ 2,500 for each violation of the Act.
12:70-1.6 Processing of complaints
(a) Any complaint filed with the Commissioner that alleges a
violation of the Act or of this chapter shall be processed in the same manner
as a claim for wages filed with the Division of Wage and Hour Compliance,
[page=1675] Wage Collection Section, within the Department pursuant to N.J.S.A.
34:11-57 et seq.
(b) Hearings of the Division of Wage and Hour Compliance, Wage
Collection Section, under this chapter, may be conducted remotely with the
assistance of technology, such as telephone, web-based video conferencing, and
submission of documentary evidence by email or text.
An appeal from a judgment of the Division of Wage and Hour
Compliance, Wage Collection Section, under this chapter shall follow the
procedure set forth at N.J.S.A. 34:11-63.
12:70-1.8 Independent contractor status
The criteria in the Unemployment Compensation Law at N.J.S.A.
43:21-19(i)(6)(A), (B), and (C), commonly referred to as the "ABC test,"
and the case law interpreting and applying the ABC test to potential employment
relationships shall be used to determine whether the individual is an employee
or an independent contractor under the Act and this chapter.
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