Stanton, Hughes, Diana, Cerra, Mariani & Margello P.C.
Employment & Benefits Attorneys
YOUR QUESTIONS ANSWERED
New Jersey and Federal Law __________________________________________________________________
Volume 1, Issue 1 www.stantonhughes.com March 2001
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Information That Impacts Your Business Daily
Each month, a Stanton Hughes partner will provide you with answers to questions that are commonly asked about employment and benefits law including new laws and rulings that impact your business. This month, Patrick Stanton answers questions about jury duty, pay for vacation advances, requiring direct deposit and providing breaks. We suggest that you save Your Questions Answered each month and file it in a searchable database or indexed notebook. If you have additional questions for Pat Stanton, you can reach him at pstanton@stantonhughes.com or 973/656-1600. JURY DUTY Q: A: Do I have to give employees time-off for jury duty? Granting some time off for jury duty is the safest course of action. The Jury System Improvements Act of 1978 states that employees who are called to serve on federal jury duty cannot be discharged, intimidated or coerced because of that service or because of attendance or scheduled attendance in court in connection with that service. Similarly New Jersey State law forbids an employer from penalizing, threatening or otherwise coercing an employee because that employee is required to attend court for jury service. Do I have to pay employees for jury duty? There are no reported cases in New Jersey in which a state court has required a private employer to pay employees for time lost due to state jury duty. Federal courts have split over whether employees called for federal jury duty must be paid for the time missed from work. A federal court in Manhattan ruled that a company could not limit pay for jury service to ten days a year where the employee had been called for federal grand jury service. However, a federal court in Florida ruled that an employer was within its rights to limit jury duty pay to the ten days a year provided for under a collective bargaining agreement. There is a wrinkle with regard to exempt employees. Under both state and federal law, an exempt employee only remains exempt from the overtime provisions of the wage and hour laws if that employee is paid each week on a “salary basis.” Under the salary basis test, if an employee works at least part or all of one day during the week and otherwise misses time for jury duty service, the employee must be paid his or her entire weekly
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salary. If the employer fails to do so, that failure can be the basis for claiming that the employee thereafter must be regarded as a nonexempt employee for overtime purposes. If the exempt employee does not work at all in a given week, failure to pay that employee during that week for time missed for state jury duty service will not jeopardize the employee’s exempt status. Q: A: Can I require an employee to use accrued paid time to cover days missed for jury service? If the time missed would otherwise be unpaid, an employer can require employees to use accrued paid time off for time missed for jury duty as well as for other reasons. However, there is some question under both state and federal law as to whether an employer can discriminate against employees in this regard simply because they were called to jury service. Specifically, requiring employees to use paid time-off for jury service while not requiring them to use paid time-off for other reasons arguably violates the anti-discrimination provision of both state and federal law. PAY FOR VACATION ADVANCES Q: Speaking of paid time-off, can I deduct from an employee’s last paycheck when I advance vacation pay and he quits before he has earned the vacation? Generally, no. New Jersey law severely limits an employer’s ability to make deductions from employees’ wages. This includes deductions from final wages. Unless authorized by either state law or federal law, New Jersey law provides that an employer cannot withhold any portion of an employee’s wages without the employee’s consent. Even if the employee consents, New Jersey law limits deductions from wages to certain very specific categories. One of those specific categories involves employer loans to employees. Arguably, an employer can make a deduction if the employer and the employee agree in writing in advance that the unearned vacation pay was actually a loan to the employee by the employer. If an employer and an employee enter into such a written agreement, and that agreement specifically provides that loan can be deducted from the employee’s last pay check, New Jersey law arguably would allow deductions to be made from the employee’s final paycheck. However, to date, there is no reported decision from a New Jersey court which considers whether this type of arrangement is valid. PAYMENT UPON TERMINATION Q: When do I have to give an employee his or her last paycheck when the employee’s employment is terminated? Regardless of whether the employee voluntarily resigns or is involuntarily terminated, New Jersey law requires that the employer must pay the employee all wages due no later than the next regular payday for the pay period during which the termination occurred.
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DIRECT DEPOSIT Q: A: Can I force employees to direct deposit their paychecks? No. While New Jersey Law permits an employer to direct deposit an employee’s wages where the employee consents, the employer cannot direct deposit wages without the employee’s consent. BREAKS Q: A: Am I required to give employees breaks during the working day? Generally no. However, special rules do apply under the child labor laws. Specifically employees under the age of 18 must be given at least thirty minutes for lunch period (which can be unpaid) after five continuous hours of work.
Have an idea for a future issue of Your Questions Answered? Feel free to email your suggestion to jglassman@stantonhughes.com This Q&A is meant to assist in a general understanding of the current law. It is not to be regarded as legal advice. Companies or individuals with particular questions should seek advice of counsel.