New Jersey’s Equal Pay Act
In 2018, Governor Phil Murphy, of New Jersey, signed the Diane B. Allen Equal Pay Act (Equal Pay Act). The Equal Pay Act has been described as, “the most sweeping equal pay legislation in the nation.” Essentially, the act expands upon equal pay protections in relation to the New Jersey Law Against Discrimination (LAD). The LAD prohibits discrimination and harassment based on actual or percieved race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics. Therefore, the Equal Pay Act prohibits an employer from paying any member of an LAD-protected class less than an employee who is not a member of a LAD-protected class for substantially similar work. Ultimately, the protections under New Jersey’s Equal Pay Act extend beyond the pay-disparities between genders. Continue reading to get to know New Jersey’s Equal Pay Act and what it means for employers and employees.
Changes to the Law Against Discrimination
The Equal Pay Act made numerous changes to the LAD in order to further reduce and eliminate pay disparities based on all categories of protected characteristics. Below, we will discuss a few of the main changes. Click here for further information regarding the changes to the LAD.
Remedies for Violations
First, the Equal Pay Act expanded remedies for pay discrimination. The LAD already prohibited employers from discriminating, in terms of compensation, based on protected characteristics. However, under the LAD, employees who successfully proved pay discrimination could only recover up to two years of back pay. Now, under the Equal Pay Act, employees who successfully prove their claim of pay discrimination can recover up to six years of back pay. In order to recover all six years of back pay, the employee must show that the discrimination they faced was continuous and that the most recent violation occured within the LAD’s two-year statute of limitations. In other words, the employee has two years from the date of the most recent act of discrimination to file a claim.
Substantially Similar Work
The caveat of the Equal Pay Act is that an employer cannot pay a member of a LAD-protected class less than a non-member for substantially similar work, when viewed as a composite of skill, effort and responsibility. Substantially similar work does not mean the two jobs must be identical. Rather, it means the two jobs require a similar degree of skill, effort, and responsibility. Also, to clarify, rate of pay or compensation includes benefits. If a member of a protected class proves that they are being compensated less than a non-LAD protected class member, the employer is liable. There are only two ways an employer can waive liability. First, an employer can prove that the pay difference was actually due to a seniority or merit system. Next, if an employer can prove the following five statements are true, then they can also waive liability.
- The pay differential is based on a more legitimate factor than an employee’s protected class characteristics. For example, some more legitimate factors may include, training, education or experience, or the quantity or quality of production.
- The factor or factors are not based on, nor do they perpetuate, differences in compensation based on sex or any other characteristic of a protected class.
- Each factor is applied reasonably.
- One or more of the factors account for the entire difference in wages.
- The factors are job-related, in relation to the position in question and based on business necessity. If a factor is based on business necessity, it will not apply if it can be demonstrated that there are alternative business practices that would serve the same purpose without producing a difference in pay.
The Equal Pay Act also increased the regulations that are intended to prevent employers from retaliating against employees. The LAD already prohibits retaliation against any person who opposed any forbidden acts or practices under the LAD. Furthermore, the LAD protects employees who filed a complaint, testified, or assisted in any proceeding under the LAD. Now, in addition, employees who seek legal advice regarding their rights, share relevant information with legal counsel, or share information with a government entity are fully protected from retaliation under the Equal Pay Act.
Moreover, the Equal Pay Act allows employees to request, discuss, and disclose certain information without fear of retaliation. Employees can now request information regarding a job title or the compensation of fellow employees or former employees. They can also ask about the gender, race, ethnicity, military status, or national origin of those fellow and former employees. The information they receive can be discussed with any other fellow or former employee, a lawyer from whom the employee seeks legal advice, or any government agency. An employee can request this information even if it is not related to an equal-pay claim. Lastly, the Equal Pay Act prohibits employers from requiring their employees to waive their right to make any such requests or disclosures.
Who is Covered?
Nearly all New Jersey employees are covered by the Equal Pay Act. This includes part-time, full-time, seasonal, per-diem, and temporary employees. Additionally, the Equal Pay Act applies to all state, county, and municipal employees. Finally, employees who live outside of New Jersey can still claim under the Equal Pay Act if they have a primary place of work in New Jersey. If you are, however, employed in the domestic service of any person the Equal Pay Act does not apply. The Equal Pay Act also does not cover any federal employees.
Likewise, nearly all New Jersey employers must comply with the Equal Pay Act. There is no minimum amount of employees an employer must have for the Equal Pay Act to apply. In fact, even one employee is enough for the Equal Pay Act to apply. Furthermore, a New Jersey employer need not live in New Jersey for the Equal Pay Act to apply. As long as an employer has employees with a primary place of work located in New Jersey, they must comply with the Equal Pay Act. The Equal Pay Act does not apply to federal government employers. Although, it does apply to state and municipal government employers.
Need a Lawyer?
If you think you have a case for pay discrimination under the Equal Pay Act, contact a lawyer right away. Together, you and your lawyer can decipher the specifics of your case and your next best move to build a successful claim. David Kaplan, attorney at law, has specialized in areas of employment discrimination for over 30 years. His extensive knowledge of New Jersey discrimination laws, and the rights of employees, nearly guarantees success for his clients. Kaplan is passionate about dedicating his time and resources to help those who have had their rights violated. Starting with a free initial consultation, David Kaplan handles every case personally. For more information, or to book free legal consultation, visit his website.