Another Update: New Jersey’s New Pay Equality Notice Law

As we have previously discussed (September 24, 2012 alert and December 2012 eAuthority), a new law will require New Jersey employers, with 50 or more employees, to post and distribute (at various times) a notice to employees of their right to be free from gender-based pay discrimination in the workplace, and to obtain employees’ acknowledgment of receipt of the notice.

The New Jersey Department of Labor and Workforce Development just issued proposed rules providing guidance about the new law, along with a sample proposed notice for posting and distribution to employees. The rules and notice are scheduled to appear in the January 7, 2013 issue of the New Jersey Register, but are available here in the interim.

The proposed rules, which essentially track the posting and distribution obligations set forth in the law, clarify one important area of ambiguity: whether the law only applies to New Jersey employers with at least 50 employees in New Jersey, or more broadly to any New Jersey employer with at least 50 employees nationwide. The proposed rule confirms that the law broadly applies to New Jersey employers with 50 or more employees whether those employees work inside or outside of New Jersey.

Of note, the proposed rule contains two errors, which are slated to be corrected. The more significant error makes it appear that employee acknowledgements must be collected in connection with both the distributed and posted notices, rather than just for the distributed notices. (The other error corrects an inconsequential mistaken-reference.) The New Jersey Department of Labor has advised that these errors will be corrected, via this Notice of Administrative Change, which will be published in the January 22, 2013 issue of the New Jersey Register.

The proposed notice itself is unremarkable. It provides summary information about Title VII of the Civil Rights Act, the Equal Pay Act, the New Jersey Law Against Discrimination, and the New Jersey Equal Pay Act, information about filing claims under those laws, and contact information for the agencies accepting claims under those laws.

Please review our previous alerts (September 24, 2012 alert and December 2012 eAuthority) for a compete discussion of the posting and distribution requirements.

Finally, please be reminded that employers presently have no posting and distribution requirements under this law, notwithstanding the availability of the draft poster and proposed rules. Rather, after the 60-day notice and comment period ends (which will be extended by several weeks due to the errors mentioned above), the New Jersey Department of Labor will review the comments received, and if necessary, make revisions to the form of notice. Significant changes would necessitate another 60-day review and comment period, but minimal changes could lead to a more prompt Notice of Adoption. Only until the notice is officially adopted by the New Jersey Department of Labor—which still appears to be between three and six months away—will employers’ posting and distribution obligations commence.

Mark Diana is the Managing Shareholder of Ogletree Deakins’ Morristown, NJ office. Evan Shenkman is Senior Knowledge Management Counsel at Ogletree Deakins based in the firm’s Morristown, NJ office.