The only exceptions are if the employer can demonstrate a pay differential based on “a seniority system,” “a merit system,” or “bona fide factors” other than sex. They include “training, education or experience, or the quantity or quality of production.” Among other things, those “bona fide factors” must be “job-related” and “based on a legitimate business necessity.”
It’s all happening very soon.
Check out Senate Bill 104, also known as the Diane B. Allen Equal Pay Act, for yourself.
On Monday, the NJ Senate voted to approve it unanimously, 35-0. The Assembly approved it in a 74-2 vote. NJ Governor Phil Murphy has indicated that he will sign it. (Former Governor Chris Christie had conditionally vetoed a prior version.)
Here are some other highlights of the bill:
- The statute of limitations on a claim is six years, and it restarts with each paycheck.
- Forget about requiring employees or prospective employees to consent to a shortened statute of limitations or to waive any of the protections provided by the “Law Against Discrimination.”
- The definition of retaliation under the LAD include a broader definition of what constitutes protected activity. That now includes “[seeking] legal advice regarding rights under this act, shar[ing] relevant information with legal counsel, [or] shar[ing] information with a governmental entity.”
- And, if you violate the equal pay provisions, “the judge shall award three times any monetary damages to the person or persons aggrieved by the violation.”
According to Bill Wichert reporting at Law360 (here), female attorney wage gap was a motivating factor in advancing this legislation.
I’d be remiss if I didn’t mention that I work for a law firm, FisherBroyles, LLP, where there is no wage gap for attorneys based on gender or any other protected class. Instead, our compensation model is entirely transparent, upfront, and objective. Put another way; we’re all on the same formula. I know everyone else’s compensation, and they know mine.
(If you’d like to learn more about a career at FisherBroyles, email me.)
But, I digress.
How employers can prepare.
Two words: pay audit.
Make sure that, if employees performing substantially similar work don’t get paid the same wages and benefits, there is a damn good reason why.
If you need some help with that, please contact me or another employment lawyer.
Or don’t, grab your pearls for clutching, and re-read this blog post.