NJ is doing more NJ things by beefing up its age discrimination rules for hiring and promotions

2018-07-26 12 18 12 "Welcome to New Jersey" sign along southbound New Jersey State Route 284 just after entering Wantage Township, Sussex County, New Jersey from Minisink, Orange County, New York

Famartin, CC BY-SA 4.0, via Wikimedia Commons

Earlier this week, Governor Phil Murphy announced that he had signed A681 into law, which expands the scope of the Law Against Discrimination (LAD) — already one of the most comprehensive anti-discrimination laws in the country — by providing protections against age discrimination by employers.

Hey, I’m not complaining. Changes like these will help pay to put my kids through college. But let’s see what this latest amendment is all about.

The announcement notes that  the LAD amendments extend protections against age discrimination by:

  • Implementing a higher standard for a government employer in terms of setting a mandatory retirement age;
  • Eliminating the provision of the law that allows employers not to hire or promote workers over 70 years old;
  • Removing the provision within the law that permits higher education institutions to require tenured employees to retire at 70 years old; and
  • Expanding the remedies available to an employee required to retire due to age to include all remedies available under the LAD and not just reinstatement of employment with backpay.

On paper, the second bullet point is the most likely one to impact my clients. But I’ve got to be honest with you. I didn’t know the 70-year-old LAD cap was a thing. Then again, the Age Discrimination in Employment Act already closed that loophole in 1986.

The only meaningful difference between the ADEA and the LAD is that the ADEA does not permit the recovery of compensatory or punitive damages, while the LAD does. However, prevailing plaintiffs in ADEA may get liquidated damages.

To be clear, neither the LAD nor the ADEA requires employers to hire or promote workers over 70 years old. Instead, age can’t motivate the decision.

Or mess around and find out.


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