On April 24, 2018, Governor Murphy has signed one of the nation’s strongest equal pay bills into law. The new legislation is known as The Diane B. Allen Equal Pay Act, S-104 (“the Allen Act”). The Act amends the New Jersey’s Law Against Discrimination. While the main purpose of the law is to close the gender-pay gap, it goes beyond just paying men and women the same. In fact, it forbids pay differentials between members of any protected class when those workers are performing substantially similar work. The new legislation strengthens the Law Against Discrimination, making it one of the powerful anti-discrimination laws in the United States.

What is the Purpose of the Allen Act?

The Diane B. Allen Equal Pay Act makes it illegal in New Jersey for employers to pay women or members of any other protected class listed under the Law Against Discrimination less than anyone who do not belong to a protected class.

The legislation is considered to be strongest in the country because victims of discrimination will be able to seek back pay for up to six (6) years of underpayment. Prior to this new legislation, these claims only covered back pay for up to two (2) years.

Additionally, if the employer is guilty of unlawful employment practices, the legislation allows for treble damages to be awarded. This means that a court may award a plaintiff triple the amount of the actual damages. The Allen Act also mandates an award of reasonable attorneys’ fees and costs when the plaintiff wins.

When Does the Allen Act Become Effective?

The new law takes effect on July 1, 2018.

What is a Protected Class?

Under the Allen Act, a “protected class” would include race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

What are the Statute of Limitations for the Allen Act?

Sections of the Allen Act mirror the federal Lily Ledbetter Act. Those sections amend the New Jersey Law Against Discrimination (LAD) to 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.

Under the new legislation, the statute of limitations begins each time discriminatory action is taken. The Allen Act also prohibits an employer from requiring an employee to agree to a shorter statute of limitations or to waive any protections provided under the LAD.

The “discovery rule” might set the accrual of the statute of limitations when the plaintiff discovers the violation instead of when it actual occurred. The “continuing violation doctrine” might make the occurrence of a violation within the statutory period permit a claim for violations that pre-date the statute of limitations.

Can My Employer Make Me Waive My Protections?

The bill prohibits an employer from requiring any employee or prospective employee to waive their rights under the law as a condition of employment.

Can My Employer Take Reprisal Actions Against Me?

The Diane B. Allen Equal Pay Act, S-104, prohibits employers from taking reprisal action against employees in New Jersey for discussing with, or disclosing to, other employees or former employees, attorneys, or government agencies, information about job titles, occupational categories, rates of compensation, gender, race, ethnicity, military status, or national origin of employees or former employees.

What are the Reporting Requirements for New Jersey Contractors?

Under the new legislation, an employer entering into a contract with the State of New Jersey would be required to provide information concerning every employee employed in connection with the contract, including information regarding the employee’s job title, occupational category, race, gender, and total compensation. The bill also requires the report to specify significant changes in employee status during the contract.

What are the Exceptions to Equal Pay Rules?

The Allen Act contained several exceptions. For example, the employer’s pay practices do not violate the Allen Act if the employer can demonstrate that men and women are paid differently for the same work under:

  • a seniority system;
  • a merit system;
  • a system which measures earnings by quantity or quality of production; or
  • “bona fide factors.”

The “bona fide factors” can include “training, education or experience, or the quantity or quality of production.” The law requires, however, that the “bona fide factors” must be “job-related” and “based on a legitimate business necessity.”

How Can Employers and Employees Prepare?

Employers can prepare for the Allen Act by conducting an audit to determine whether employees that perform substantially similar work are being paid the same in salary and benefits. Employers must also train those who make hiring decisions and compensation decisions to ensure compliance.

What if I am Experiencing Employment Discrimination?

Many businesses will be looking closely at their hiring, promotion, and compensation decisions in order to comply with the new law. If your employer is not in compliance with the provisions of the Allen Act, consider seeking out legal advice from an experienced employment law attorney.

With offices in Philadelphia, PA and Moorestown, NJ, the employment law attorneys at Console Mattiacci Law, LLC, represent employees in discrimination cases throughout New Jersey, Philadelphia and New York. If you are a victim of employment decimation, please call us today at 859-854-4000 or contact us here.

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