On behalf of our 20,000 members and their 1.2 million employees, I am writing to express our concerns with S-992. While we appreciate the intent of the legislation in addressing pay discrimination and seeking to ensure that the employees of public contractors are equitably paid, we respectfully propose amendments to make the legislation consistent with federal law and the 2010 New Jersey Supreme Court Decision.
In Alexander v. Seton Hall University, 204 N.J. 219, the New Jersey Supreme court ruled that each paycheck resulting from a discriminatory pay decision constitutes an actionable act of discrimination under the New Jersey Law Against Discrimination (LAD). However, the court limited the recovery of back wages to a two year period, consistent with the federal Lilly Ledbetter Fair Pay Act (LLFPA) of 2009 and prior case law. Likewise, it ruled that the “continuing violation doctrine” – which extends the life of a claim back to the initial date of an alleged discriminatory practice- is not applicable to pay discrimination claims under the LAD.
S-992 departs from that decision, essentially stopping the statute of limitations clock, and applying the continuing violation theory for actions that may have occurred 20 or 30 years ago. Even if a claim against an employer is without merit, the employer still must spend time and money defending against it. This becomes all the more difficult if relevant records no longer exist or witnesses are no longer available.
We suggest that the bill be amended to establish a two-year limitation on damages applicable under federal law and court precedent.
The bill seems to also include language from a California law (SB358 Chapter 546 and act to amend section 1197.5 of the Labor Code, relating to private employment). Specifically, S-992 section 1. t. (1) – (5) seems to be derived from the California law, however, because of the way the language reads in S-992 it would have a far different practical impact on pay disparity law suits in New Jersey.
As drafted, the bill does not require that the ultimate burden of proof go back to the plaintiff which is contrary to the California Law and the US Supreme Court McDonnell-Douglas decision that would, after the employer proves that there was a legitimate non-discriminatory reason for the disparity, shift the ultimate burden back to the plaintiff.
We suggest amending the language in S-992 1. t. (1) – (5) to be more aligned with the California law. Additionally, we request a geographical factor to be included as a reason an employer may pay a different rate of compensation. Typically, salary ranges can vary depending on the geographical location of the job.
S-992 also seeks to impose a series of reporting requirements on all public contractors including providing information on the gender, race, job title, occupational category, and rate of compensation of each of their employees in connection with the contract. While the Prevailing Wage Act already requires information regarding an employee’s job title and rate of compensation to be submitted to the State, this bill would expand those requirements to include gender and race information and would require such reporting by public contractors who are not subject to the Prevailing Wage Act.
We suggest removing the reporting requirement language from the bill or amending to clarify that the expanded reporting requirements would impact contracts subject to the Prevailing Wage Act.
While the goal of this provision is to increase transparency and ensure public contractors are complying with the State’s workplace gender parity laws, this provision will do little to improve pay disparity. Instead this provision would burden countless employers with onerous reporting requirements and drive up costs of public contracts, which are ultimately paid by taxpayers.
In conclusion, we respectfully ask the sponsors to amend the bill to be consistent with federal law and the New Jersey Supreme Court decision. We further ask for technical amendments to section 1. t. (1) – (5). Finally, we respectfully ask that the expanded reporting requirements for public contractors be removed from the legislation or amended to be required ONLY for public contracts subject to the Prevailing Wage Act.
Until the requested amendments are made we respectfully ask you to vote “No” on the override for S-992.