Following President Obama’s announcement of new EEOC reporting rules designed to target the gender wage gap, this week New Jersey Senator Weinberg introduced an Equal Pay Bill that, if passed, would require employers bidding on public contracts to provide gender, race, wage, and job responsibility information.
The bill introduced by Senator Weinberg goes far further than increasing reporting requirements on public contracts. The bill also seeks to amend the New Jersey Law Against Discrimination to make it tougher for employers to defend against claims of wage disparity based on gender.
As drafted, the bill broadens the statute of limitations and is a departure from the Lily Ledbetter Act as well New Jersey precedent. The law would, as is set forth in the Lily Ledbetter Act, say that each paycheck may be a discriminatory practice, but does not then limit the statute of limitations to two years from the last paycheck or the last time there was a discriminatory compensation decision.
Instead, the law provides that the “continuing violation” applies, which would mean that an employee who is a 15 year employee could make a claim as far back as his or her date of hire if it was alleged that the discriminatory wage disparity began at the start of employment and continued throughout. The law also states that the “discovery rule” would apply which means that an employee could claim that he or she was not aware of the discriminatory practice, and thus not starting the statute of limitations clock, until several years after the termination of employment.
The proposed law also increases the burden on employers as to what would need to be proven as part of the affirmative defense that any pay disparity was based on a legitimate factor other than sex. Employers would not only have to demonstrate that the disparity was caused by either a seniority system, a merit system or a bona fide factor other than sex, such as training, education or experience, or the quantity or quality of production. Employers would also have to prove that they applied the factors “reasonably,” that one or more of the factors accounts for the entire wage differential, that the factors are job-related and consistent with job necessity, and that there were no alternative business practices that would serve the same purposes without causing a pay differential.
The proposed law also greatly expands retaliation protections for employees as “protected activity” would include merely consulting legal counsel regardless of whether the employee objected to the employer to a particular practice or filed a complaint or charge of discrimination with an outside agency or court.
It is too early to tell if the bill will get any traction, but we will keep you posted.