Recently, the New Jersey Appellate Division (New Jersey’s intermediate appellate court) decided a case called Police Benevolent Association Local 249 v. County of Burlington. The case is significant because it changed in a fundamental way the requirements an employer can impose on employees taking intermediate family leave pursuant to New Jersey’s Family Leave Act and the U.S. Family Medical Leave Act. Though the decision itself applied in the context of a public-sector grievance, we are bringing the case to your attention, and providing you with our analysis of it, because we believe the decision itself has wide-ranging implications for employees all over New Jersey, in both the public and private sectors.
The facts of the case are as follows: Ralph West was an officer with the County of Burlington, assigned as a corrections officer. As a corrections officer, Officer West was a member of the Police Benevolent Association, Local No. 249. Unfortunately, Officer West’s son suffered the effects of sickel cell disease, which required Officer West to care for him, which in turn required his absence from work on an intermittent basis.
In the collective bargaining agreement between Local No. 249 and the County of Burlington, the county attempted to reduce sick-leave abuse by county employees (including corrections officers) and it was agreed that the administrator of each county jail could submit a list of employees reasonably suspected to be abusing sick-leave privileges. Those lists had to be formulated by county jail administrators and sent to Local No. 249 every six (6) months. In this case, Officer West’s name appeared on such a list. An officer’s appearance on the list required that those officers to provide proof of illness upon the officer’s return to work from sick leave.
On March 4, 2010, Officer West was approved for interminmittent family leave due to his son’s condition. As such, Officer West was pre approved for call-outs on as necessary, consistent with the amount of family leave available to him. (The case does not discuss how much time Officer West was allowed to take. The Family Medical Leave Act provides for 12 unpaid weeks; the New Jersey Family Leave Act provides 12 unpaid weeks in any 2-year period.) On May 2, 2010, Officer West called out on interminmittent family leave in order to provide for his son’s care. He returned a day later, but did not provide proof of illness. As a result, Officer West was docked eight (8) hours of pay for his absence, and further disciplined with a two day unpaid suspension. Officer West and Local No. 249 filed a grievance on June 10, 2010, arguing the dock in pay and two day suspension violated the Family Medical Leave Act and the Family Leave Act.
The arbitration hearing was held February 3, 2011, and on June 7, 2011, the arbitrator denied the grievance, opining that the requirement to provide illness documentation was reasonable and consistent with existing law. Officer West and Local No. 249 filed a complaint with the Law Division (New Jersey’s trial court) to set aside the award, arguing the county’s decision violated Officer West’s rights under the Family Medical Leave Act and the Family Leave Act, insofar as he was pre approved for intermittent family leave prior to his May 2, 2010 request. The Law Division, though it clearly wrestled with its decision, agreed with Local No. 249 and Officer West, and rejected the arbitrator’s decision.
The county appealed, and the Appellate Division affirmed the trial court, finding New Jersey’s public policy in favor of permitting family members to care for sick or ill family members as expressed in the Family Leave Act so strong as to override the arbitrator’s decision. The court specifically stated that an employee’s rights under the Family Leave Act and the Family Medical Leave Act to unencumbered interminmittent family leave must override any limitation upon those rights. While the court noted the public policy exception such as the one stated here is “rare,” and requires “heightened judicial scrutiny,” the public policy rationale can serve as the basis for overturning an arbitration award (or employer policy) so long as the decision is grounded in “legislative enactments, administrative regulations, or legal precedents” and not “amorphous considerations” of public well-being.
Although this decision applies, on its terms, only to this particular arbitration decision, we believe this decision could have wide-ranging and far-reaching consequences. First, the Appellate Division has established a public policy exception to limitations upon an employee’s rights under the Family Leave Act, which did not previously exist. While it is true that the Family Medical Leave Act and the Family Leave Act provide for means by which employees can take interminmittent family leave, those statutes are equally clear that employers can impose reasonable limitations, and can indeed require proof of the need for such leave. Although it would seem somewhat redundant for an employer to continue to ask for documentation from an employee on intermittent family leave, that request is not unreasonable where an employer may suspect sick leave abuse or excessive absenteeism. We believe it could be only a matter of time before this decision is applied to employees in the private-sector context. What may be especially significant is the cost involved for private-sector employers. In the particular case of Local 249 v. County of Burlington, the county’s most serious penalties had to do with paying its attorneys and providing Officer West with up to three (3) days of back pay. Notably, the New Jersey Family Leave Act, as well as the federal Family Leave Act, provides for reimbursement of a successful plaintiff’s attorney’s fees, but this decision was unclear whether the case was brought entirely by Local 249 or whether Officer West retained private counsel. If brought solely by Local 249, fees may not have been awarded given the public interest provided by Local No. 249 in bringing such a suit. However, that situation would obviously be different if it involves a private-sector employee, and one can easily imagine the resultant costs are far different as well.
Finally, it must be noted that this decision may yet be subject to review by the New Jersey Supreme Court. If and when that happens, we will of course keep you fully advised. In the meantime, please feel free to contact us with any questions, concerns, comments or the like.
Please feel free to contact us if you have any questions regarding this case, or any aspect of New Jersey employment law.