Diane B. Allen Equal Pay Act

 New Jersey’s Law Against Discrimination has long  made it illegal for employers to discriminate against employees in their terms of employment because of their immutable characteristics, such as their gender, race, nationality, religion, age, marital status, sexual orientation, gender identity, genetic information, disability, liability for military service, or refusing  to take to a genetic test or give their genetic information to their employer.  However, while the Federal Government enacted the Lilly Ledbetter Fair Pay Act in 2009, New Jersey did not have a counterpart which attempted to close the pay gap between men and women. 

Governor Phil Murphy made enacting a law to close the gender pay gap one of his central campaign promises in 2017.   After being elected, on April 24, 2018, he fulfilled this promise when he signed the Diane B. Allen Equal Pay Act into law.  The Act is a milestone in New Jersey employment law.

While New Jersey’s Diane B. Allen Equal Pay Act fulfills Governor Murphy’s goal of attacking the sex discrimination at the root of the gender pay gap, it goes much further.  The Act amends New Jersey’s Law Against Discrimination and includes unequal pay because of discrimination based on any protected qualification already protected by the LAD. 

New Jersey’s Equal Pay Act also strengthens the Law Against Discrimination in several other important ways.

Discriminatory Wages Illegal.  The Act prohibits employers from paying less to women and members of any other “protected class” already receiving protection under the Law Against Discrimination in their  rates of compensation, pay and benefits, if not for legitimate, non discriminatory business reasons.

Business Exceptions.  The Act does make exceptions for the employers’ legitimate business needs.  The employer may pay people in different classes at different rates, but the employees’ race, gender, religion, sexual, orientation, etc., cannot be the reason for the difference in pay.  In other words, people cannot be paid less because they are women, black, gay, etc.   Rather, the employer must have  non-discriminatory,  legitimate business reasons for any pay disparity.  Exceptions include merit systems,  seniority systems, quantity of production or quality of production.

 

Statute of Limitations Period Extended.  The statute of limitations for filing a claim under New Jersey’s Law Against Discrimination is two years.  However, New Jersey’s Equal Pay Act extends the limitation period to six years in claims for discriminatory unequal pay.  In addition, the Act makes each time the employee receives discriminatorily unequal pay a new unlawful employment practice, thereby extending the limitations period each pay day. 

The Act also adopts the “continuing violation” doctrine.  The “continuing violation” doctrine holds that when the illegal pay occurs regularly over period of time, the whole course of illegal pay consititutes one single continuing act.  Therefore, unequal pay even older than the six year limitation period can be recovered if it was part of a continuous course of conduct, or a “continuing violation.”

The “discovery rule” also applies to unequal pay claims.  The discovery rule provides that the “clock” on the limitations period will not begin to run until the point when the employee actually knew about the unequal pay, or should reasonably have known about it.

The Act also makes it illegal for employers to try to shorten the limitation period, or to get employees to agree to shorten it.

Damages Which May Be Recovered.  Employees who have suffered discriminatory pay may sue their employees in the Superior Court of New Jersey.  If the jury finds that an employee did suffer from discriminatory pay, the judge is required to order the employer to pay three times the employee’s lost pay found by the jury. 

Retaliation Prohibited.   Employers cannot take any retaliatory action against employees who disclose or discuss information about benefits, job titles, pay rates, or occupation categories.  This includes discussions with lawyers, government agencies or other employees.  The Act prohibits employers from making employees agree not to disclose this information.

 

Contact Us.  If you have suffered from discriminatory and unequal pay, call us at (973) 890-0004 or email us to set up a consultation with our employment attorneys.

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