On August 29, 2013, Governor Chris Christie signed P.L. 2013, c.154 which adds language to the New Jersey Law Against Discrimination (NJLAD) to protect to employees discussing or providing salary and benefits information with other employees from retaliation. This Fast Facts attempts to help employers understand the significance of these changes.
New Jersey’s Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12(d) prohibits any person from taking reprisal against any other person because that person:
has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
This anti-retaliation prohibition has been interpreted by New Jersey courts to apply not only to those employees who actually bring an anti-discrimination claim against their employer, but also to any employees who aid or assist such individuals in bringing such claims. Generally, an employee who provides information, including compensation information, to an employee complaining of discrimination is assisting that complaining employee and would, therefore, be protected against reprisal under the NJLAD’s anti-retaliation provisions. Nonetheless, the NJLAD was amended to add an anti-retaliation provision that expressly addresses the situation in which an employee shares compensation and benefit information with another current or former employee for purposes of investigating, considering or asserting a discrimination claim under the NJLAD.
—Amendments to NJLAD to Address Discriminatory Pay Practices—
NJLAD was amended to expressly address the issue of discussing compensation in the workplace in an effort to encourage gender equity. Specifically, a section “r” was added to the NJLAD to prohibit reprisal against an employee:
for requesting from any other employee or former employee of the employer information regarding the job title, occupational category, and rate of compensation, including benefits, of any employee or former employee of the employer, or the gender, race, ethnicity, military status, or national origin of any employee or former employee of the employer, regardless of whetherthe request was responded to, if the purpose of the request for the information was to assist in investigating the possibility of the occurrence of, or in taking of legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits.
The NJLAD was also amended to make clear, however, that this provision cannot be used by an employee, former employee or employee organization to require disclosure of compensation information.
Originally, proponents of this legislation had sought to extend the protections of New Jersey’s Conscientious Employee Protection Act (NJCEPA), N.J.S.A. 34:19-1 et seq., to protect employees discussing or providing salary and benefits information to other employees as whistleblowers. Because workplace discrimination claims are brought under the NJLAD, however, the Governor conditionally vetoed that original legislation, and proposed modifying the bill to remove the proposed language from the NJCEPA and incorporate it into the NJLAD.
Many businesses have a policy or rule that provides that:
Employees are prohibited from discussing their salary or wage levels and company benefits with other employees. Such information is confidential and may not be discussed in the workplace. Any employee violating this policy will be considered to have committed a breach of confidentiality and will be subject to disciplinary action, up to and possibly including termination of employment.
Enforcement of such policies against employees investigating the possibility of discriminatory pay practices will expose the employer to possible liability under the NJLAD.
Prior to the amendments to the NJLAD, however, having or enforcing such a policy potentially violated federal labor law. Specifically, the National Labor Relations Act (NLRA) contains a provision, Section 7 (29 U.S.C. § 157), that gives all employees the right to “engage in concerted activities,” including the right to discuss the terms and conditions of their employment with each other. Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon these two provisions, for decades, the National Labor Relations Board (NLRB) has taken the position that employers may not prohibit employees from discussing their pay and benefits, and that any attempts to do so violated the NLRA.
Employers should also be wary about disciplining employees for sharing compensation information outside of work or through social media. When employees discuss compensation in a virtual forum such as online message boards or personal blogs, Section 7 rights and the provisions of the NJLAD still apply. Just as employers cannot prohibit or limit employees’ ability to discuss salaries and benefit information away from the workplace, they must also allow employees to discuss compensation information online. Neither Section 7 nor the amendments to the NJLAD, however, permit employees to publicly disparage a company’s products or services. Therefore, in certain circumstances, employees who combine compensation discussions with substantial criticism of their employer’s business or products may still legally face disciplinary action by their employer.
—For More Information—
If you need additional information, please contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or email@example.com.
Updated: March 2, 2018
This information should not be construed as constituting specific legal advice. It is intended to provide general information about this subject and general compliance strategies. For specific legal advice, NJBIA strongly recommends members consult with their attorney.