During the debate on the newly-signed Paid Leave mandate on virtually all New Jersey employers, CIANJ and other business groups argued the bill left small businesses exposed to potential lawsuits. While the law's intent is not to require companies with fewer than 50 employees to hold a job open for employees on leave, dismissed employees could still have grounds to sue based on other state and federal laws.
Today's Record offers even more support for that argument against paid leave,
"I find it interesting and very contradictory that they would ... put such an explicit statement in there that anybody who takes it is subject to replacement as long as it's a small employer, with 50 or less employees,'' said Chris Mills, a partner in Murray Hill-based labor law firm Fisher & Phillips. "I'd be astonished if employee advocates didn't try to find a way around this. It's almost a lose-lose situation here.''
Even if the law says workers at small businesses who take paid leave can't sue their bosses if their job is filled while they're caring for a new child or ill family member, Mills said legal challenges are almost certain. People who already have job protections based on age, gender, race, and/or sexual orientation, likely will have their day in court....
Of course that also means small businesses will endure the hardships and costs associated with being a defendant.
[Two A]ttorneys are recommending their clients, mostly large companies, prepare to implement the law, which workers will be eligible to take July 1, 2009. Smaller operations, each lawyer said, should look to local business associations for guidance. And no boss, they recommend, should risk being sued by either denying leave or not holding a job, if possible, for employees who take the time.
"Because it's only six weeks, companies with under 50 employees ... most are going to hold a job open because of concern they'll get sued,'' said [David I. Rosen, a shareholder at Littler Mendelson in Newark.]. "It's just not worth it.''
The threat of lawsuits and the conflicts with other statutes was a good reason not to pass the paid leave mandate into law. Now that the bill has been signed by Governor Corzine, it is an excellent reason for legislators and the Administration to monitor lawsuits and adjust the law periodically.
Sadly, some small business would have to serve as a test case for that to happen, spending attorney fees on their defense in the process. Surely the paid leave advocates who helped create the situation would come to their aid, no?