N.J. Admin. Code § 12:69-3.6

Current through Register Vol. 56, No. 9, May 6, 2024

Section 12:69-3.6 - Earned sick leave; payment

(a) The employer shall pay the employee for earned sick leave at the same rate of pay as the employee normally earns.

(b) The taking of earned sick leave by the employee shall not result in any diminution in the employee's benefits; in other words, for the purpose of employee benefits, when an employee takes earned sick leave, it shall be as if the employee worked those hours.

(c) Under no circumstances during a period of earned sick leave may an employer pay an employee less than the State minimum wage rate.

(d) Where an employee has two or more different jobs for the same employer or if an employee's rate of pay fluctuates for the same job, the rate of pay for earned sick leave shall be the amount that the employee is regularly paid for each hour of work as determined by adding together the employee's total earnings, exclusive of overtime premium pay, for the seven most recent workdays when the employee did not take leave and dividing that sum by the total hours of work during that seven-day period.

(e) Where an employee is paid by commission, whether base wage plus commission or commission only, the employer must pay the employee during earned sick leave an hourly rate that is the base wage or the State minimum wage rate, whichever is greater.

(f) When an employee is paid on a piecework basis, whether base wage plus piecework or piecework only, to calculate the employee's rate of pay for earned sick leave, the employer shall add together the employee's total earnings for the seven most recent workdays when the employee did not take leave and divide that sum by the number of hours the employee spent performing the work during workdays.

1. When doing this calculation, the employer shall consider workdays to mean the days or parts of days the employee worked.

(g) Where an employee uses earned sick leave during hours that would have been overtime if worked, the employer is not required to pay the overtime rate of pay.

(h) When the employee's pay includes the value of gratuities, food, or lodging, to calculate the employee's rate of pay for earned sick leave, the employer shall add together the employee's total earnings, exclusive of overtime premium pay, for the seven most recent workdays when the employee did not take leave and divide that sum by the number of hours the employee spent performing the work during workdays.

1. Where the employee's pay includes the value of gratuities, food, or lodging and it is not feasible to determine the employee's exact hourly wage for earned sick leave purposes using the method described in (h) above, the employer shall be deemed to have fulfilled the requirement of this section regarding the payment of earned sick leave if the rate of pay for earned sick leave is based on the agreed hourly wage, but in no event shall earned sick leave be paid at a rate less than the State minimum wage rate.

(i) Where the amount of a bonus is wholly within the discretion of the employer, the employer is not required to include the bonus when determining the employee's rate of pay for earned sick leave purposes.

N.J. Admin. Code § 12:69-3.6

Adopted by 52 N.J.R. 20(a), effective 1/6/2020