on the amount of the payouts are not affected by this proposal.
Under current law, the method of calculation might be contained in a provision of the PBA contract, or it might be in an ordinance or resolution, or based on a past practice. Local units may make payments for accumulated absence pursuant to the terms of the parties’ collective negotiations agreement, by local ordinance or enabling resolution, and / or employment contract with individual employees where the benefit is authorized by local ordinance or enabling resolution. There are currently no restrictions on how the parties calculate the payment.
This rule proposal would change the method of calculation. The stated purpose of the proposal is to impose limits on local government payouts for accumulated absences. Thus, the method for calculating the rate of pay for accumulated absences would no longer be negotiable; this regulation would become the only permissible method for calculation. The new limitations, if adopted, will apply starting the effective date of the rule proposal or upon the expiration of a PBA contract in effect on the effective date of the rule proposal.
The following is a summary of the proposed rule changes:
• Payment for the accumulated time is to be calculated according to the base salary the employee received at the time the absence was accumulated, not when it is paid out. The chief financial officer must provide documentation which shows the base salary when the days were accumulated. By way of example, if an officer accrues 10 sick days in 2005 and was paid $ 80,000 at that time and then carries those days until his or her retirement in 2017, under the proposal the officer would be paid for the days at the 2005 rate of pay, not the rate of pay upon retirement in 2017.
• Absences accumulated starting the effective date of the proposal, or upon expiration of a contract in effect when the proposal becomes effective, must be used in the order of highest dollar value to lowest dollar value. By way of example, if an officer accumulates 10 sick days in 2015 at a base salary of $ 80,000 and 10 sick days in 2016 at a base salary of $ 85,000, and needs to use those days in 2017, he or she will have to use the 2016 days first because those have a higher dollar value. If the employer puts a cap on total value of accumulated absence, such that the employee accumulates non-compensable accumulated absences once that cap is reached, compensable absences must be used before any non-compensable absences are used. By way of example, if the employer puts a cap on the number of sick days an officer can accumulate, but allows the officer to accumulate sick days which will not be compensated, any paid sick days must be used before any unpaid sick time is used. In other words, an officer would have to use up paid time, and that paid time must be used in the order of highest dollar value to lowest dollar value.
• Greater restrictions than those provided in the proposal can be placed on the employee’ s ability to be compensated for accumulated absences by the employer.
• If the employee cannot provide the documentation currently required for payment of accumulated absence, the“ partial documentation” exception to the rule, which allows the employer to make payment despite not having the complete documentation if there is good and reasonable cause to do so, allows the employer to approve payment up to the effective date of the rule proposal, or up to the date of expiration of an agreement in effect as of the effective date of the rule proposal. Thereafter, no partial documentation will be accepted to approve payment, and the good and reasonable cause exception will no longer apply. The current rule has provisions that address the type of documentation required. N. J. A. C. 5:30- 15.4( b). However, documentation for the accumulated absences is usually not a problem for PBA members because records are kept when officers are eligible for payment at separation from employment.
In municipalities or counties where officers are eligible for pay for accumulated absences, PBA Locals should review how that payout is calculated. Is it based on an expressed provision of a contract, a past practice, an ordinance or resolution, or some other written procedure? This may be important in determining both how the payout will be calculated and when it will become effective in the event this rule is adopted as proposed.
Comments to the proposed rule are due no later than Oct. 20. As noted above, our firm will submit comments opposing the rule proposal. It is difficult to say when LGS will make a final decision on this proposal. It could be before the end of this year but it may depend, in part, on how many responses are received. After all comments are received, LGS will review them and decide whether to adopt, reject or modify the proposal. Its decision, along with its responses to the comments, will be published. If LGS adopts the rule as proposed, we will evaluate the agency’ s decision for a possible appeal. We encourage PBA Locals whose members enjoy this benefit to consult with their attorneys and to submit comments objecting to this rule, in addition to the comments we will submit on behalf of the State PBA. Of course, we will keep the State PBA and its members advised of any developments with this important issue. d
www. njcopsmagazine. com ■ SEPTEMBER 2017 11