New Jersey lawmakers are once again moving to enact legislation aimed at policing discriminatory pay practices in the workplace.
The Senate Labor Committee on Monday recommended passage of S-104, sponsored by Sen. Loretta Weinberg, D-Bergen, and Senate President Stephen Sweeney, D-Gloucester, in a 5-0 vote.
Former Gov. Chris Christie, a Republican, had vetoed identical legislation, most recently in 2016. That conditional veto marked the third time Christie has returned the legislation, deeming its remediation terms too broad.
“It is unacceptable that women still earn less than men across the country and in New Jersey,” Weinberg said in a statement Monday. “Unfortunately, our current laws don’t do enough to protect against wage discrimination. I am proud that we are moving to address another vestige of gender bias with legislation that will promote ‘equal pay for equal work.’”
During the Christie administration, legislators repeatedly passed the bill, modeled after the federal Lilly Ledbetter Fair Pay Act of 2009, which made it easier to bring pay-discrimination suits by allowing the statute of limitations to reset with the issuance of every offending paycheck. However, unlike the federal law, the proposed state law would place no limit on the period of time for which a plaintiff could seek damages.
Christie, in his 2016 conditional-veto message, said damages should be capped at two years.
“As I expressed previously when a similar provision reached my desk, unlimited back pay for wage discrimination clearly departs from well-established law,” Christie said. “There is no reason for our law to go beyond the Lilly Ledbetter Act; the sponsors should not object to matching the federal law they so often cite as a model.”
Christie also said lawmakers should remove language allowing for treble damages. “Neither state nor federal law authorizes treble damages,” he said. “The sponsors would make New Jersey a liberal outlier.”
S-104, if enacted under Gov. Phil Murphy, a Democrat, would:
- Prohibit unequal pay for “substantially similar” work, under the Law Against Discrimination. The legislation would make it unlawful for an employer to pay a rate of compensation, including benefits, to an employee of one sex less than the rate paid to an employee of the other sex for substantially similar work when viewed as a composite of skill, effort and responsibility, unless specific conditions apply.
- Require a different rate of compensation be justified by factors other than sex. The bill would permit an employer to pay a different rate of compensation if the employer demonstrates that the differential is made due to a seniority system, a merit system, or is based on legitimate, bona fide factors other than sex, such as training, education, experience, or the quantity or quality of production. The bill would require that each factor is applied reasonably, that one or more of the factors account for the entire wage differential, and that the factor or factors do not perpetuate a sex-based differential in compensation, are job-related and based on legitimate business necessities.
- Restart the statute of limitations for each instance of discrimination. The bill would mandate that a discriminatory compensation decision or other employment practice that is unlawful under the LAD occurs each time that compensation is paid in furtherance of that discriminatory decision or practice—effectively making each paycheck another instance of discrimination, reflecting the state Supreme Court’s interpretation of wage discrimination under the LAD as well as language in the Ledbetter act. In addition, the bill would provide that liability shall accrue and an aggrieved person may obtain relief for back pay for the entire period of time in which the violation has been continuous, if the violation continues to occur within the statute of limitations. This provision would be stronger than the federal Ledbetter act, which has a two-year cap on back pay.
- Prohibit employer retaliation against an employee for disclosing or discussing compensation. Employers would not be allowed not take reprisals against an employee for requesting, disclosing or discussing information about the job title, occupational category, and rate of compensation of any employees or former employees. It would prohibit an employer from requiring an employee or prospective employee to forgo rights to make, discuss, or request those disclosures.
- Require transparency in state contracting. The bill requires contractors to provide information on gender, race, job title, occupational category and compensation, and to report certain changes during the course of the contract; information must be filed with the labor commissioner and the Division of Civil Rights. The bill requires disclosure to employees and their authorized representatives on request.
A Murphy representative said the administration would not comment on pending legislation.