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New Jersey Expands Equal Pay Protections

06/06/18

Author: ADP Admin/Wednesday, June 6, 2018/Categories: State Compliance Update, New Jersey

New Jersey has enacted legislation that significantly expands the state’s equal pay law.

Senate Bill 104:
Senate Bill 104 amends the New Jersey Law Against Discrimination (LAD) to prohibit employers from paying an employee who is a “member of a protected class” less than employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort, and responsibility. Employers with unlawful pay differentials are prohibited from reducing the pay of an employee to comply with the law. Comparisons of compensation must be based on rates in all of an employer’s operations or facilities. Compensation constitutes all forms of pay, including benefits. Full a full copy of Senate Bill 104, please see this link: http://www.njleg.state.nj.us/2018/Bills/S0500/104_R2.HTM

Protected Classes:
Under the law, protected classes include race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

Pay Differentials:
Differentials in compensation are permitted only if the differential is made in accordance with a seniority or merit system, or the employer demonstrates that:
  • The differential is based on one or more legitimate, bona fide factor(s) other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production;
  • The factor(s) are not based on, and do not perpetuate, a differential in compensation based on any characteristic of members of a protected class;
  • Each of the factors is applied reasonably;
  • One or more of the factors account for the entire wage differential; and
  • The factors are job-related and based on a legitimate business necessity and there are no alternative business practices that would serve the same business purpose without producing the wage differential.


Right to Discuss and Disclose Wages:
Existing law prohibits employers from taking adverse action against an employee for requesting certain information from another employee or former co-worker, including job title, occupational category, rate of compensation, gender, race, ethnicity, military status, and national origin. Senate Bill 104 clarifies that employees are also protected if they discuss or disclose such information with/to a current or former employee. Employees are also protected from adverse action if they request, discuss, or disclose such information from/with/to any government agency or a lawyer from whom the employee seeks legal advice.
Additionally, the law prohibits employers from requiring, as a condition of employment, any employee or prospective employee to agree to not make such requests or disclosures.

State Contractors: Senate Bill 104 requires an employer entering into a contract with the state to provide certain information concerning employees employed in connection with the contract, including information regarding the compensation and hours worked of employees by gender, race, ethnicity, and job category.

Coverage: Employers with employees in New Jersey

Effective: July 1, 2018

Action Required: Review your pay practices and policies and consider training supervisors and others involved in making compensation decisions. You may also want to consider working with your legal counsel to complete an equal pay analysis. While employers may find it helpful to organize relevant data for a proactive self-evaluation, employers should be cautious. Unless protected by the attorney-client privilege, the reports created for self-evaluation likely would be discoverable in litigation and government investigations, including investigations by the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). Plaintiffs’ attorneys also may seek copies of these reports to try to buttress other types of discrimination or favoritism claims. Therefore, employers should be cautious and consult with counsel before attempting to conduct any self-evaluation.

As always, please be sure to contact your HR Business Partner if you have any questions.

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