In late June 2012, three significant employment bills (A2647, A2648, and A2650) reached Governor Chris Christie’s desk, having cleared both houses. Whether the governor will sign or veto the bills is unknown. Although described as a “Gender Pay Parity” package, if enacted, these bills would go significantly beyond that stated purpose.
Mini-Lilly Ledbetter Law
One bill (A2650) addresses the statute of limitations applicable to compensation discrimination claims under the NJLAD. The bill adopts the language of the federal “Lilly Ledbetter Fair Pay Act of 2009,” and the holding of the New Jersey Supreme Court in Alexander v. Seton Hall University, 204 N.J. 219 (2010), by providing that an unlawful employment practice occurs, with respect to discrimination in compensation (or other financial terms and conditions of employment), on “each occasion that an individual is affected by application of a discriminatory compensation decision or other practice, including, but not limited to, each occasion that wages, benefits, or other compensation are paid, resulting in whole or in part from such a decision or other practice.” In other words, each paycheck impacted by a discriminatory pay decision, regardless of how long ago that decision took place, would “restart” the applicable two-year statute of limitations for compensation discrimination claims under the NJLAD. Further, the bill provides that it is within the court’s discretion to apply the continuing violation doctrine to any “appropriate” employment discrimination claim under the NJLAD, as that doctrine “currently exists in New Jersey common law.” The impact of this language on wage discrimination claims in particular is unclear, as the New Jersey Supreme Court in Alexander recently held that the continuing violation doctrine was not appropriate for discriminatory compensation claims (thus limiting damages to the most recent two-year period). Plaintiffs may seize upon the law’s new continuing violation language in an effort to obtain back pay of unlimited duration in wage discrimination claims.
Amendment of CEPA to Encompass Certain Information Collecting
A second bill (A2648) would amend the Conscientious Employee Protection Act (CEPA) (N.J.S.A. 34:19-1 et seq.) to create a new class of employees protected from retaliation—those who seek information, or provide information, in furtherance of a potential or actual compensation discrimination suit or charge. Specifically, protection would be afforded to employees who seek or disclose information regarding job title, occupational category, rate of compensation (including benefits), or the gender, race, ethnicity, military status, or national origin of an employee or former employee. To enjoy these protections, the requesting or disclosing employee must have a “reasonable belief” that the purpose for the request or disclosure was to assist in investigating or legally challenging potential discrimination concerning pay, compensation, bonuses, or other benefits. While such claims previously could have been brought under the NJLAD’s anti retaliation provision—which prohibits “reprisals against any person because that person has opposed any practices or acts forbidden under [the NJLAD],”—employees now have the alternative to bring such claims under CEPA.
New Workplace Poster and Notice
The third bill (A2647) would require New Jersey employers with 50 or more employees to post and distribute a new notice (to be drafted by the NJDOL) that details “the right to be free of gender inequity or bias in pay” pursuant to the NJLAD, Title VII, and the Equal Pay Act. (There is some ambiguity in the bill as to whether the distribution requirement only applies to employers with over 50 employees; the posting requirement is so limited.) Employers would be required to distribute a copy of the notice: 1) no later than 30 days from its issuance or at the time of an employee’s hiring (whichever is sooner); 2) annually on or before December 31 of each year; and 3) at any time upon request of the worker. The distribution requirement may be satisfied by email, printed material, or through an Internet or intranet website (provided certain requirements are met). Further, the distributed notice would need to be accompanied by an acknowledgement to be signed (or electronically verified) by the employee and returned to the employer within 30 days. Finally, employers would be required to post and distribute the notice in English and Spanish, plus any other language (for which the NJDOL has made a poster available) that the employer reasonably believes is the first language of a significant number of its workforce.