Yesterday, Governor Murphy signed the Diane B. Allen Equal Pay Act. The new law will go into effect July 1, 2018. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. If you have any questions regarding how to comply with New Jersey’s new pay equity law, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.
Yesterday, the New Jersey Senate and Assembly passed comprehensive pay equity legislation. The legislation passed both houses with significant bi-partisan support and it is expected that Governor Murphy will soon sign the legislation into law. Once in effect, the legislation, which amends the New Jersey Law Against Discrimination (“the LAD”), will be the most wide-ranging pay equity law in the United States. Significantly, unlike most pay equity laws passed in recent years by other states which target unlawful pay discrimination of women, the New Jersey law will prohibit pay discrimination of employees in any protected class. Specifically, the legislation makes it an unlawful employment practice to discriminate against a member of any protected class by compensating the employee at a lesser rate of pay, benefits, or other forms of compensation than an employee who is not a member of the protected class for “substantially similar work.” The “substantially similar” standard, which diverges from the “equal work” standard of the federal Equal Pay Act, mirrors the California Fair Pay Act. Moreover, the legislation provides that comparisons of wage rates shall be based on wage rates in all of an employer’s operations or facilities regardless of where located. An employer will be permitted to pay a different rate to an employee if it can show that the...
EEOC to Collect Wage and Hour Data Based on Race, Ethnicity, and Gender in Effort to Aid Enforcement of Laws Requiring Pay Equity
The United States Equal Employment Opportunity Commission (“EEOC”) has proposed a change to the EEO-1 Report, the standard form used to collect workforce profiles from certain private industry employers and federal contractors. In its current iteration, the form annually requires employers to categorize their workforces based on gender, race, ethnicity, and job category, using data collected from one pay period occurring in July, August, or September of the reporting year. The amended form would require further categorization of employees based on W-2 earnings and hours worked.
New Jersey Appellate Division Decision Stresses Importance of Meaningful Anti-Harassment Policy and Training
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for allegations of sexual, racial, or other harassment under New Jersey law. The New Jersey Appellate Division in Dunkley v. S. Coraluzzo Petroleum Transporters recently reinforced this fact, and the decision provides a helpful reminder to employers that adopting clear anti-harassment policies, providing regular training to its workforce, and immediately addressing allegations of harassment/discrimination once presented, are important factors that may help them avoid liability for the conduct of employees who violate such policies.
At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.
Beginning November 12, 2012, the State of New Jersey will require employers to post a new “equal pay” notice in the work place, to provide the notice to employees and to obtain an acknowledgment of receipt. Effective November 18, 2012, the City of Newark will impose restrictions on employers conducting hiring in the City with regard to the use of criminal background checks for job applicants.
On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.
On an issue of first impression in the Third Circuit whether “a failure-to-promote claim” constitutes “discrimination in compensation” as prohibited by the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”) the Court of Appeals recently held that a failure to promote claim is not the same as a discrimination in compensation claim. Consequently, the Plaintiff in Noel v. The Boeing Company could not avail himself of the FPA’s more flexible statute of limitations period.
Stating that “[e]motional distress is a recognized byproduct of discrimination,” the New Jersey Law Division recently held in the unpublished decision of McGhee v. Pathmark Stores, Inc. et al. that the three plaintiffs did not put their mental state in issue when they pled severe and continuing pain and suffering over a three-and-a-half year period as a result of race-based employment discrimination under the New Jersey Law Against Discrimination (LAD), and rejected the defendant employers’ application to conduct an independent medical examinations (IMEs) of the plaintiffs.