The FMLA Blog

New Jersey Enacts Paid Family Medical Leave

On May 2, 2008, New Jersey joined California and Washington to become the third state to require companies to offer paid family medical leave to employees. 

The family leave insurance law allows employees to take up to 6 weeks of paid leave a year beginning July 1, 2009.  The program is paid thorough payroll deductions costing employees about $33 a year each.  Employers are not required to pay into the program.  Payroll deductions begin on January 1, 2009. 

Under the program, employees may receive two-thirds of their salary, up to a maximum of $524 a week.  Employers can require employees to use at least 2 weeks of sick and vacation leave before taking paid leave under the program.      

The legislation allows an employee to take paid time off to bond with a newborn or newly adopted child.  It also allows an employee paid time off to care for a sick relative receiving inpatient care in a hospital, hospice, or residential medical care facility, or under the continuing supervision of a health care provider.

Employee's may take paid leave in one 6-week period per year, or during a maximum of 42 intermittent days a year.

The legislation is designed to run concurrently with the New Jersey Family Leave Act and the federal Family and Medical Leave Act, not consecutively.

Employees of businesses with 50 or less employees who take paid leave are not guaranteed the right to return to their job under the program. 

The law also imposes criminal penalties and fines for employees who fraudulently claim paid leave benefits.  Employers are notified and may contest an employee's claim to eligibility under the program.

Comment:  Historically, state family leave law has been a leading indicator for the direction of federal legislation. Every year there has been federal legislation introduced to require some paid family leave.  Given the current make-up of congress and depending on how the presidential election turns out, federal paid family medical leave legislation may not be far off.          

Liquidated Damages Provisions of FMLA Provide Adequate Remedy to Preclude State Wrongful Discharge Claim

In Deffenbaugh v. Winco Fireworks Int., LLC, No. 06-2516-CM, 2007 U.S. Dist. LEXIS 69350 (D. Kan. Sept. 18, 2007), the employee sued her employer alleging violations of the FMLA, and a state common law claim for wrongful discharge in violation of Kansas public policy.  Under Kansas law, an employee may not bring a common law wrongful discharge claim for violation of a public policy when there is an adequate statutory remedy. 

The employee argued that the FMLA did not provide an adequate statutory remedy because of the unavailability of emotional distress or punitive damages under that law.  Such damages are available under the state wrongful discharge law.  The employer argued that the availability of liquidated damages provided an adequate statutory remedy thereby precluding the state wrongful discharge claim.

The court agreed with the employer.  The FMLA allows an employee to recover actual damages for any economic loss suffered.  It also allows for the recovery of liquidated damages if the employer acted in bad faith.  Liquidated damages under the FMLA, the court held, serve as a deterrent. 

The court went on to distinguish the decision of the Kansas Supreme Court in Hysten v. Burlington N. Santa Fe Ry. Co., 277 Kan. 551, 108 P.3d 437 (Kan. 2004).  There, the court found that the federal statue did not provide an adequate remedy because, in part, the statue did not permit recovery for compensatory or punitive damages, noting that such damages deterred violations.  Because it found that the liquidated damages provisions of the FMLA was also intended to deter violations, the court in Deffenbaugh held that the FMLA provides an adequate statutory remedy.  The plaintiff, the court concluded, cannot bring a common law wrongful discharge claim.

Comment: Note that the court based its decision because liquidated, punitive, and emotional distress damages all have the same purpose: to deter violations. The fact that liquidated damages may not result in the same level of award as punitive or emotional distress damages was not a factor. 

Maine Poised to Extend State Family Leave to Domestic Partners

The Maine legislature recently forwarded a bill to the Governor's office to expand Maine's Family Medical Leave Act to cover domestic partners, including same sex partners.  Under the existing standard,an eligible employee may take family medical leave for, among others, a spouse.  Governor John Caldacci has publicly indicated that he will sign the bill into law.   Maine's Family Medical Leave law applies to all employers in the state with 15 or more employees.  Under Maine law, an eligible employee is entitled to take up to 10 weeks of family medical leave.